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Elian Gonzalez: Whatever Happened to Legal Precedent?


Images of armed federal agents in riot gear storming through the Miami home of Elian Gonzalez's relatives dominated news coverage on the weekend of April 22nd and 23rd. In one swift move, at the orders of Attorney General Janet Reno, Elian was torn from the home of his great-uncle, Lazaro Gonzalez and returned to his biological father. Members of the Gonzalez family, national political figures and Sunday morning talk show regulars were left with nothing to do but puzzle over questions that always come up when child custody issues are at stake. Public discourse on Elian Gonzalez and on all child welfare cases would be considerably advanced if the public understood that the Supreme Court has already ruled - repeatedly - that a child's best interests are not a matter for courts or the government to consider unless the child's parents have been found unfit.

One of its most definitive rulings comes straight from a 1982 New York State child welfare case, Santosky v. Kramer, in which the Court declared that the due process clause of the Constitution requires that parents be found unfit before states can move against the fundamental legal bond between children and parents. "You cannot talk about best interests unless you've determined that a parent is unfit. You can not presume the interests of parent and child are opposed until you decide that parent has fallen down on the job," said Bruce A. Boyer, a professor in family law at Northwestern University School of Law in Chicago. "And that's a principle that applies across the board."

In the eyes of the Supreme Court, in other words, when parents are fit, protecting a child's interests means keeping child and parent together.

Farber Sounds Off:

The Elian Gonzalez case highlights another recurring theme in child welfare cases: It is difficult for adults to conceive of what the world looks like from a child's point of view.

"Six-year-olds see the world in very concrete here and now ways," explained Dr. Flemming Graae, interim director for child and adolescent psychiatry at New York Presbyterian Hospital's Westchester campus. Abstractions that adults take for granted - that people we've never met, for instance, can be members of our families - are impossible for young children to manage. From Elian's point of view, Lazaro Gonzalez and the Miami relatives may be no more relevant to his sense of safety than a group of kind strangers.

Similarly, adults charged with making decisions for children in the child welfare system often fail to recognize how children think about their worlds. Children entering New York City's foster care system awaken in beds that are unfamiliar, among strangers, cut off from everything that is customary. For many adults this would be a difficult transition. For young children - who tend to see the world in egocentric terms - placement is likely to have considerable impact, for which the child feels some responsibility. Yet child welfare officials rarely speak of placement as a profound trauma.

I ignored the Elian Gonzalez story until the morning after the raid when even moderate voices questioned the Justice Department1s actions. In contrast to early commentators, I saw the raid as a rare good use of force. A slower removal might have produced different results, like a prolonged tug of war with Elian forced to take sides. There is no need for Congressional hearings or public debate; the Justice Department handled a difficult situation well, and deserves public applause.

Peggy J. Farber is freelance journalist specializing in children's issues. Her reporting on conditions of NYC children has appeared in City Limits Magazine as well as on National Public Radio.

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