04/18/10 - Cuba-L Analysis (Albuquerque) -
Ten Reasons Why Elián González
Should Be United With His Father

by Nelson P Valdés

[Dear Cuba-L reader: In the last few days the US media reported on Elián González. You are reading a document submitted in January 2000 to the US Department of State during the so-called Elián affair.]

First, the U.S.-Cuba Joint Communiqué on Cuba-U.S. Migration, New York City, September 9, 1994 established that both countries agreed to procedures and measures "to ensure that migration between the two countries is safe, legal, and orderly." The agreement established that, "The United States and the Republic of Cuba recognize their common interest in preventing unsafe departures from Cuba which risk loss of human life. The United States underscored its recent decisions to discourage unsafe voyages. Pursuant to those decisions, migrants rescued at sea attempting to enter the United States will not be permitted to enter the United States, but instead will be taken to safe haven facilities outside the United States. Further, the United States has discontinued its practice of granting parole to all Cuban migrants who reach U.S. territory in irregular ways."

In 1995 both countries signed the Companion Agreement on Migration by which the US government agreed to return to Cuba all those who were intercepted at sea, if they did not reach the US mainland. This is known as the "wet feet you go back, dry feet you stay" (in the US). The 1994 agreement also established that "The Republic of Cuba will take effective measures in every way it possibly can to prevent unsafe departures using mainly persuasive methods."

The record indicates that the child was found at sea, he never reached the US mainland on his own. Moreover, fishermen found him and turned him over to the US Coast Guard. If this is the case, then the child has to be returned, as the 1994-1995 Migration Agreement establishes.

Second, the 1994 agreement has a section on "Alien smuggling" between Cuba and the United States. It reads, "The United States and the Republic of Cuba reaffirm their support for the recently adopted United Nations General Assembly resolution on alien smuggling. They pledged their cooperation to take prompt and effective action to prevent the transport of persons to the United States illegally."

The Coast Guard, the US media and the State Department spokesman have stated that this was an illegal smuggling operation. In fact two of the survivors stated that they paid to get into the boat that would bring them to the United States.

If this is the case, then, the Migration Agreement has been violated as well. It should be noted that the 1994 agreement established that, "The United States and the Republic of Cuba are committed to directing Cuban migration into safe, legal and orderly channels consistent with strict implementation of the 1984 joint communiqué."

Third, the United States has signed the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, which established the legal rights and procedures for the prompt return of children who have been wrongfully removed from one country to another, or retained in one country. Cuba has not signed the Convention but has the right to accede to it. Under The Hague convention children who have been wrongfully removed or retained abroad are to be returned promptly.

No one has denied that the child was removed by his mother without the consent of his father or of Cuba's authorities. Nor that the father has requested that the child be returned to him.

Fourth, the U.S. Congress has ratified the International Convention on Child Abduction. In fact the Congress has declared that, "(1) The international abduction or wrongful retention of children is harmful to their well-being. (2) Persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention. (3) International abductions and retentions of children are increasing, and only concerted cooperation pursuant to an international agreement can effectively combat this problem." (See: Section 1 of Pub. L. 100-300 or the International Child Abduction Remedies Act.)

Fifth, if the issue of custody is raised, then a custody jurisdiction dispute between the United States and Cuba (a country that has not ratified The Hague Convention) is to be handled in accordance with the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction Enforcement Act of the U.S. It should be noted that the federal legislation establishes under Section 105. INTERNATIONAL APPLICATION OF [ACT] that the court "shall treat a foreign country as if it were a State of the United States for the purpose of applying the law. That means that the rules that apply to another state in the United States also applies when it comes to the foreign country. That means that " (c), a child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3." U.S. federal law is consonant with the International Convention, which, under Article 3 recognizes that "the law of the State in which the child was habitually resident immediately before the removal or retention" is the one that applies in the case.

It has been argued that the mother's intent of taking the child to the United States should be respected. However, the law says otherwise. The moment when the child was removed, it has been argued, constitutes a "loss of residence" even if a new habitual residence has not been established. But U.S. Court of Appeal for the 6th Circuit concluded otherwise. (Friedrich v. Friedrich, No 92-3117, 983 F.2d 1396, decided 22 January 1993)

Sixth, the 1999 Florida Statutes also support the father's claim. The following sections are pertinent to this case:

a) the father's Cuban custody is to be recognized according to The Uniform Child Custody Jurisdiction Act, Section 61.1348 International application. (It reads, "The general policies of this act extend to the international area. The provisions of this act relating to the recognition and enforcement of custody decrees of other states apply to custody decrees, and decrees involving legal institutions similar in nature to custody institutions, rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons."

b) the child is to have frequent and continuing contact with his father, which obviously cannot happen if the child is in the US and the father in Cuba. (See: "Section 61.13(b) 1. The court shall determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act. It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of child-rearing. After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child."

c) responsibility for a minor child is the province of both parents; obviously in the absence of the mother, then the father is responsible "unless the court finds that shared parental responsibility would be detrimental to the child." There is no evidence of any felony or of domestic violence on the part of the father. Moreover, the International Convention as well as the U.S. law does not apply here because the issue should not be who has custody, but rather whether the child should be returned to his parent.

d) Florida law recognizes that decisions concerning custody should take place, " ordinarily in the state with which the child and his or her family have the closest connection and where significant evidence concerning his or her care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and the family have a closer connection with another state." (Fla. Stat. § 61.1304 (1999))

e) A court in the state of Florida should not be considering the case at all, first because Florida is not the "home state" of the child nor has the child resided in the state for at least 6 months. (See: Fla. Stat. § 61.1308 (1999), 61.1308 Jurisdiction. (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (a) This state: 1. Is the home state of the child at the time of commencement of the proceeding, or 2. Had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his or her removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state;)

A mere physical presence of the child in the state is not sufficient to confer jurisdiction on a court of the state to make a child custody determination. (FLORIDA STATUTES 1999, HISTORY: s. 4, ch. 77-433; s. 326, ch. 95-147.)

Seventh, the very fact that the child has been held in Florida without the consent of the father, the only surviving parent may constitute kidnapping as defined by the Florida Statutes, TITLE XLVI, Chapter 787. Kidnapping refers to the confining of a child under 13 "against her or his will" meaning, confinement "without the consent of her of his parent or legal guardian." (See: Section 787.01b). The Florida courts have not yet determined who the legal guardian is; but the Cuban courts state it is his father.

Eighth, it remains to be determined whether in fact there has been a concerted effort to interfere with the custody of the child's father. (See Section 787.03, (1) Whoever, without lawful authority, knowingly or recklessly takes or entices, or aids, abets, hires, or otherwise procures another to take or entice, any child 17 years of age or under or any incompetent person from the custody of the child or incompetent person's parent, his or her guardian, a public agency having the lawful charge of the child or incompetent person, or any other lawful custodian commits the offense of interference with custody and shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; (2) In the absence of a court order determining rights to custody or visitation with any child 17 years of age or under or with any incompetent person, any parent of the child or incompetent person, whether natural or adoptive, stepparent, legal guardian, or relative of such child or incompetent person who has custody thereof and who takes, detains, conceals, or entices away that child or incompetent person within or without the state, with malicious intent to deprive another person of his or her right to custody of the child or incompetent person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084.)

Ninth, the United Nations Convention on the Rights of the Child ratified by Cuba and the United States in its Article 11 declares that "States Parties shall take measures to combat the illicit transfer and non-return of children abroad" and "to this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements." Article 35 calls for "all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale or traffic in children for any purpose or in any form."

Tenth, human decency, family love and common sense dictates that this child and his father should be together.