About Fathers [and Siblings] (Part 3)

I've mentioned before about one of the controversial arguments that have been presented in the Cuban child custody case, but recently another has been posed.

Last Wednesday (August 29), Joe Cubas [in picture], current custodian of the 4-year old Cuban girl in dispute, appeared on the Jim DeFede radio show to present his side of the story. He mentioned his early efforts in trying to contact the legal father of the girl in Cuba, and how he respected the father's right as a parent. BUT, he also mentioned his respect for the rights of the girl's 13-year old half-brother [MP3]:

"First of all, I've said that I believe these children deserve to be together. And the reason I say that is because the same rights that Mr. Izquierdo has as a father are the same rights that her brother has as a brother."

"This is not only a sibling, this is also a parentified sibling. This has been the one person that has been constant in this child's life... who from the moment of her birth has acted not only as her older brother, but to a certain degree as her father."

The issues that Cubas raises about parentified siblings and the separation of siblings are very important (and have been discussed thoroughly), but I have never heard of the rights of parentified siblings being viewed as "the same" as a legal parent's until recently.

The phenomenon of parentification, where a child assumes a parental role when a legal parent (for various reasons) cannot, does seem to apply to the Cuban child custody case: the 13-year old brother very likely had to assume a larger role in the single-parent family after they arrived in the US, and may have thus achieved a very profound bond with her younger 4-year old sister, especially after the mental breakdown of the mother and the subsequent intervention by the state. But, how these facts lead to a legal claim to the younger sister, on par with the legal rights of the father, is beyond me. Though, attorney Alan Mishael does try to explain.

Alan Mishael, part of the legal team representing the Joe Cubas Family and the 13-year old half-brother, last month told the Miami Herald that ''[c]hildren have a constitutional right to remain with their siblings, unless the state presents a compelling reason for splitting them up." Mishael is referring to the 14th Amendment that specifically forbids laws denying "life, liberty or property" without due process. It's the same amendment that protects a parent's right to their children, unless they are determined to be unfit. But, I think Mishael is really stretching it thin because this particular argument for sibling rights has been defeated in the past, and very likely does not apply in this case.

Mishael's concern is understandable. He's on the board of directors of Florida's Children First, an organization that does very noble work representing childrens' concerns in the care of the state. His professional history is admirable and deserving of many other awards, but does he really want to go on a "collision course" with the rights of the father and brother? Whose interest does this really serve?

In the literature (and articles) concerning the separation of siblings (or parentified siblings), many strongly argue that actions should be taken very early to keep siblings together (during and after state care), especially if the bonds are strong. In the Cuban custody case, while the siblings do not have the same father, their separation could have been prevented if the state had denied any adoption until the parents of BOTH children had given up parental custody. But, instead (as if in a hurry), DCF carelessly gave custody rights to the Cubas Family knowing well that there was a father in Cuba.

It's a bit too convenient for Joe Cubas or DCF to now say that they want the siblings together, when it was they that caused the initial separation of the two. Arguments about the rights of siblings (or parentified siblings) should've been made when the children were still in state care, before the half-brother was adopted by Joe Cubas. According to Ira Kurzban, lawyer for the legal father (Rafael Izquierdo), "the [half-brother] no longer has the same legal rights, under Florida law, as other siblings. State law... terminates the bonds between siblings when one or more of them are adopted." There are similar laws in other states when siblings are separated through adoption.

Those who are making this case more complicated, are stretching the legal limits.