Elian Redux

It's disappointing to see this case, of the four-year old girl, going down the same troubled path of the 1999-2000 Elian Gonzalez case.

This evening (Aug. 27), the Spanish TV program Polos Opuestos had on two attorneys discussing this new case. One of the guest was Isabel Bombino, and the other was Jose Garcia-Pedrosa. You might remember Garcia-Pedrosa because he was one of the many attorneys that fought for Elian Gonzalez to stay in the US in 2000, contrary to the biological father's wishes and federal rulings.

Now, it seems (but I'm not certain) that Garcia-Pedrosa works for the legal team trying to keep this four-year old girl in the US, again contrary to the wishes of the biological father and legal standards.

On Polos Opuestos, Garcia Pedrosa repeated one of the same failed arguments used in 2000 to keep Elian Gonzalez away from his father: that the child's separation from his current place of custody would be severely traumatic to bear and constituted abuse.

According to AP's Laura Wides-Munoz, the presiding Judge, Jeri Cohen, today was shocked at such an argument saying: "What you're trying to do is say that if a father wants to remove his child from placement....that if a father does that or a mother, that constitutes prospective abuse?... I have never seen anything like this in all of my years of doing dependency [hearings]."

The other guest, Isabel Bombino, also thought the argument was weak, but instead believed that arguing the father had abandoned his child had a better chance. According to this argument, the biological father should have known that the mother, who lost child custody in the US, was unfit to care for her daughter and thus "failed to protect" the child when he allowed her to leave for the US. Wides-Munoz reports that this argument allowed the case to move forward for tomorrow, but "[Judge Cohen] warned state officials, however, that their evidence seems flimsy." According to video by CBS4 news, before she heard the abandonment argument, Judge Cohen tells state officials: "I'm ready to dismiss it, convince me not to."

Some details about this argument are in the Wides-Munoz article, and there are similarities with the Elian Gonzalez case too. In 2000, Elian's father was also accused of being unfit, and abandoning his child when he earlier separated with Elian's biological mother.

Columnist Michelle Malkin, in 2000, pointed out how Garcia-Pedrosa was insinuating that Elian's father was abusive by suggesting the need for "psychological experts to do what we do anytime a child in this country makes allegations of sexual molestation, child abuse or any kind of misconduct by an adult." Malkin called it a "defamatory charge," and describe the tactic as the "dirtiest card."

According to Jeffrey M. Leving, child custody expert, "[t]his is a very simple case in juvenile court... If the father's attorney cooperates and continues with the visitation between the dad and the child, the father will end up getting custody." Leving suggests keeping the case at a "low profile" and "under the radar."

It's important to note that the Elian Gonzalez case was also a simple immigration case that blew up into a custody case, which it wasn't. Allowing attorneys to present failed arguments on television, like Polos Opuestos allowed, will certainly create another public circus to surround this case, and obviate from its simple legal procedure.

According to a poll conducted this evening by Telelmundo51 (whose results were revealed in the 11pm news), 44% of voters thought the four-year old girl should stay in Miami, while 56% thought she should return to Cuba with her father. More than 200 voters participated. Here's a screen shot by 11:30pm.

The only obstacle in this case seems to be the fact that old and failed arguments have been resurrected from 2000. Garcia-Pedrosa, on Polos Opuestos, again attempted to make this a political issue, where the Cuban government has ultimate custody of Cuban children. A similar argument from January 2000, saying: "that the irony of this situation is that the custody of the father has been taken over by the Cuban government... So the nature of the consent or the nature of the wishes of the father is very much an issue until what is in Cuba a highly ideological totalitarian rigid state."

Hopefully, Garcia-Pedrosa has abandoned his 2000 position when he said: "The boy will not be surrendered, period... They either have to take him by force, which would be scandalous, or they have to go to federal court, which is what they should do."

A child's options should not include such faulty, limited and drastic alternatives.

[Update - Aug. 28: Latest Telemundo51 poll results show increased support for the girl to go back to Cuba with her father, 57%.]