The bastardization of justice
WE ARE TOLD that Attorney General Janet Reno was merely enforcing "the law" when she ordered the predawn raid with masked, machine-gun-toting federal agents into a private home. According to the administration -- as well as innumerable "experts" incessantly quoted in the media -- one crucial law being violated by Elian Gonzalez's Miami relatives is the "law" that a father be given custody of his son.
This most solemn law was helpfully articulated by The Economist (which placed the blame for the dispute squarely on the "bloody-mindedness of Miami's Cuban-Americans") thus: "American and international law are both clear -- the boy should go back to his father."
Somehow left out in all these statements of "the law" is the law's ironclad caveat -- unless the father is unfit (by, for example, demanding that his son be subjected to a machine gun raid or a communist dictatorship).
But forget about the caveat for now. Let's just consider the initial presumption that a father gets custody of his son. The law is indeed clear, at least to this extent: That "law" refers only to legitimate children.
Elian is Juan Miguel Gonzalez's illegitimate son. Elian was neither born nor conceived when Juan Miguel was married to his mother. Nor did the father ever rectify Elian's bastardy. According to The New York Times, Elian's parents were divorced in May 1991; Elian was born on Dec. 6, 1993. The woman with whom Elian has been forcibly reunited is not, as she is called, his "stepmother." She is the woman now married to the man who knocked-up Elian's unwed mother.
Consequently, even if Elian's mother had taken him from, say, Indiana to Florida and died on the way, the father back in Indiana would not necessarily be awarded custody. Indeed, at common law, fathers had absolutely no rights with respect to any children they bore out of wedlock. Of course, we've come a long way since marriage was considered a consequential institution. But still: Even in swinging, post-sexual revolution America, a father's legal rights to an illegitimate child remains a highly contentious, and prodigiously litigated, matter.
The Supreme Court last weighed in on the legal rights of unwed fathers in 1989 when it cut off all of the father's rights to his child, including visitation.
The court did so without consideration of the father's fitness as a parent. So first of all, it is not "the law" that the biological father of a child, unmarried to the mother when the child was born, is automatically entitled to so much as visitation rights -- much less custody.
If Elian's case were a simple domestic custody case, Florida courts would decide the matter, and Florida takes an especially dim view of the legal prerogatives of fathers who sire illegitimate children. Just last year, a Florida appellate court described the rights of an unwed father to his biological child as "a mere inchoate right to establish legal fatherhood."
In the wake of a series of "Baby Jessica" and "Baby Richard" cases in the early '90s, in which the white-trash biological fathers of illegitimate children tore the children away from nice adoptive families, Florida, along with several other states, enacted a "prebirth abandonment" law that requires courts to consider the unwed father's lack of "emotional support" of the mother during the pregnancy itself.
In a 1995 case, In re: The Adoption of Baby E.A.W., Florida's Supreme Court held that the natural father had no legal right to object to an adoption because he had "abandoned" the child during gestation. Since the father was not married to the mother, the court reportedly relied on such facts as the mother's testimony that the father was an "ice cube" during a doctor's visit and had an affair with another woman during her pregnancy.
But let's assume Cuba's answer to Joey Buttafuoco had made Elian's mother an honest woman. There is still that little caveat in the law stripping parents of custody rights if they are proved to be "unfit." This is obviously a high standard, but Juan Miguel didn't become Castro's toady for lack of trying.
I will exclude the allegations that Juan Miguel used to beat both Elian and his mother and rely only on this single uncontested fact: Instead of going to Miami to retrieve Elian himself, Juan Miguel allowed a federal SWAT team armed with submachine guns to stage a military-style assault on his son in the dead of night. Not merely allowed it, either: He demanded it. The New York Times reported on Tuesday that even the woman who gassed all those kids at Waco was reluctant to use force to retrieve Elian. But the father insisted on it.
What kind of father would knowingly put his son in harm's way in order to avoid minor inconvenience to himself? The kind, evidently, that our Solomonic attorney general just gave custody to.
-- Uncle Bob (unclb0b@aol.com), April 28, 2000