In the typical custody case, the governing standard is best interest of the child, and it is usually presumed that a childs best interest lies in being raised by his or her parents. In Elians case, I would rely on the best-interest analysis, and not purely on parental rights to resolve the case.
Some critics argue that the best interest standard is too indeterminate. But it is the best way we have found to express the principle of placing the childs needs and interests first. However, the idea that living in a rich country must be in a childs best interest grossly distorts what the standard is really about.
The core of the concept is a respect for the individual childs unique developmental and psychological needs, and protection of his intimate attachment relationships. Elian has seen his mother die and apparently has a strong relationship with his father and grandmothers. He needs them more than he needs trips to Disney or U.S. citizenship. It seems clear that this child should be reunified with family in Cuba.
Barbara Woodhouse is a professor in the Law School, and codirector of the Center for Childrens Policy Practice and Research.
Neither his Miami relatives, who have brought suit to prevent his repatriation, nor his father, who is trying to get him back to Cuba, own the child. So who has the legal right here, I dont feel competent to say.
People have tried to bring up cultural arguments in this case. In Cuban culture, the relationship between a child and his extended family is important. Well, it is true that he has extended family here, and hes in the Cuban community in the United States, which has been able to maintain practices that might make him feel at home.
But he isnt with the people he has known and trusted over a period of time.
It may be a cultural issue to the degree that perhaps we dont respect all peoples cultures over here. We in America talk about a melting pot. We see the way we do things as the only way.
We say a child will have greater opportunities in this country, as defined by us. Theres no guarantee hell come here and be successful. But there is an assumption that he would not be afforded the same level of achievement in Cuba. But Cuba has a high literacy rate, higher than the United States. We assume that if it doesnt fit into a Western and American notion of achievement and success, it cant be good.
The question is raised about whether this little boy is a political pawn and whether in five years we will be as concerned about his well-being as we seem to be right now. There are lots of kids who could stand to have our attention who do not. Theres this outpouring of effort for a child who does have a dad and does have an extended family and does have a community that exists in Cuba.
I would love to think that this is the beginning of America caring for childrens long-range success. Or is it an example of our devaluing of ethnic values, traditions above and beyond communism of other cultures?
For this little boy, the bottom line should be, What is in the best interests of the child now, in five years and into adulthood? What would insure the health, safety and well-being of this little boy? Can we decontextualize this from the political arena?
Vivian Gadsden, director of the National Center on Fathers and Families, is an associate professor in the Graduate School of Education.
Originally published on February 3, 2000