American Academy of Matrimonial Lawyers Urges Return of Elian Gonzalez to His Father in Letter to Congress.

Legal &Law Writers/Congressional Writers/Business Editors

CHICAGO--(BUSINESS WIRE)--Jan. 28, 2000

Position statement of the American Academy of Matrimonial Lawyers

concerning Elian Gonzalez

This letter was sent today to the President and all Members of Congress.

Dear Mr. President, Members of Congress:

The American Academy of Matrimonial Lawyers with National headquarters in Chicago, Illinois, is an organization of the top 1,500 family lawyers in the United States.

The AAML urges that Elian Gonzalez be returned immediately to the custody of his father. This statement does not take any position related to the government of Cuba, but instead focuses on the child and his family.

It appears unrefuted that Elian Gonzalez was born and lived his entire life in Cuba; and that he has had a close and continuous parental relationship with his father, Juan Gonzalez, who lives in Cuba. Because of the unfortunate death of Elian's mother, Juan Gonzalez is the only remaining parent of Elian.

The law in the State of Florida is clear that Juan Gonzalez, as Elian's father, should not be denied custody unless the award of custody to him would be detrimental to the welfare of the child. Florida has a strong public policy in favor of the natural family unit and that a parent should be denied custody only when it is demonstrated that the parent is disabled from exercising custody or that such custody will, in fact, be detrimental to the welfare of the child. The Florida Supreme Court has clearly stated &uot;to hold otherwise would permit improper governmental interference with the rights of natural parents who are found fit to have custody of and raise their children.&uot; In Re: Guardianship of D.A.Mc.W., 460 So. 2d 368 (Fla. 1984). There is no allegation that Juan Gonzalez is not a caring and loving father who can adequately provide for this son.

The only allegation which has been raised by Lazaro Gonzalez in the action that he filed in Miami-Dade County, Florida, relates to the current government of Cuba. While a communist government and the Cuban government may not be the choice of the majority of citizens in this country, Elian's father has the right to have his son reside with him in Cuba.

The Hague Convention on the Civil Aspects Of International Child Abduction (hereinafter &uot;The Hague&uot;) has been adopted by approximately 60 nations, including the United States (by way of the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et. seq.). Cuba is not a signatory of The Hague and, therefore, Juan Gonzalez does not have the right to seek the return of his son, Elian, pursuant to The Hague. In spite of that, the United States has clearly adopted the principles which should be applied to all international child custody disputes as a result of its acceptance of The Hague. The Hague has as one of its objectives &uot;to secure the prompt return of children to their places of habitual residence who were wrongfully removed to or retained in a member country.&uot; There are exceptions in The Hague which provide that a court may refuse to return a child and among those are:

(1)  There is a great risk that return would expose the child to
     physical or psychological harm, or otherwise place the child in
     an intolerable situation; or

(2)  That the return would be shocking to the conscience of the court
     and would violate &uot;the fundamental principles&uot; of the country
     where the child has been taken &uot;relating to the protection of
     human rights and fundamental freedoms.&uot;

These provisions have been strictly construed to apply specifically to the child before the court.

Likewise, Florida and all other states in the United States have accepted the Uniform Child Custody Jurisdiction Act (hereinafter &uot;UCCJA&uot;). That Act is clear that the courts of Florida should not take jurisdiction except under very limited circumstances. The prime consideration for jurisdiction is that Florida is the home state of the child at the time of the commencement of the action or has been the child's home state within six months before commencement of the proceedings. That is obviously not the case here. Accordingly, we must look to other aspects of the UCCJA to determine whether or not there is emergency jurisdiction which can only be used to maintain the status quo until a petition may be filed in the proper jurisdiction. The only other potential in this case is that &uot;it is necessary in an emergency to protect the child because he or she has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.&uot; This provision has typically applied to specific abuse or treatment directed at the child before the court. Even if jurisdiction were to be temporarily taken by the Florida court, it would be strictly for the purpose of maintaining the status quo until a petition may be filed in Cuba.

The above legal principles find their foundation in the precepts of the fundamental rights in all free societies for parents to exercise primary control in decisions concerning their children. Juan Gonzalez should immediately be given his right to exercise primary control in decisions concerning his son, Elian.

The suggestion that a six-year-old child should in some regard be given the right or opportunity to decide which country he should reside in is not supported by Florida law. Florida Statutes are clear that the court can consider in a determination of custody the reasonable preference of the child only if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference. There is no case in Florida which has determined that a six-year-old meets that criteria.

The United States Immigration and Naturalization Service decision, which was issued January 5, 2000, states that the United States Immigration and Naturalization Service had two meetings with Juan Gonzalez and determined that he has expressed his clear wishes that Elian should be returned to him as soon as possible. The determination of the United States Immigration and Naturalization Service that Elian Gonzalez should be returned to his father should be given immediate enforcement.

Respectfully,

Miriam E. Mason

President,

American Academy of Matrimonial Lawyers