"Best Interests" or "Superior Rights"?
I appreciate the amicus curiae [friend of the court] brief filed on behalf of ACFC in the Elian Gonzalez case generally, but the Gonzalez case rests on the “best interest of the child.” That, however, is not the test when one biological parent survives the other. The presumption in favor of the surviving parent is much higher than that.
It is the same as termination of parenthood by the state based on gross negligence, the intent to permanently abandon or so severe a physical or mental disability as to render the parent incapable of giving the essential care on which life depends. Otherwise, a total stranger seeking to adopt a child could come into court anytime, against any parent, and show that since they are from Beverly Hills, they can give the child opportunities that their sole surviving parent or their two parents cannot.
Our law evolves on a case-by-case basis. If we stand by or argue our interest as amicus curiae the decision will either benefit us or cause us harm. There is no middle ground. Therefore honest dialoguing is necessary despite the risk that it will be misinterpreted as an attack, which it is not. Otherwise, we will find that we, too, have aided in clouding this standard.
A Tale of Two Doctrines
Two doctrines apply to custody determinations. The “superior-rights standard” holds that the rights of the parents to the care, custody, and control of their children are superior to those of any other person. The “best-interest standard” applies only to inter-spousal disagreements, almost wholly associated with divorce. The ACFC amicus curiae brief submitted in the support of Elian, his father and fathers generally blurs this distinction. It encourages the legal community and the government to focus on “best interest” to the further erosion of fathers’ “superior rights” against anyone except the mother.
New York is not generally known as father friendly. But New York Family and Surrogate Laws preserve the distinction between inter-spousal claims and those involving the rest of humanity. Still, care is particularly necessary when arguing family law. Lawyers have learned that “the only absolute in the law governing custody of children is that there are no absolutes.” The legal establishment and international organizations are prepared to whittle down the doctrine this year. I will come back to this at the end of the article.
Courts will grant custody to someone else only if the surviving parent has legally abandoned the child by not providing for or visiting the child for an extended period, or is clearly unfit as a parent. New York courts have evidenced that it is almost impossible to show the surviving parent is unfit. It requires an extraordinary event. In Ottensman v. Lombardo, 22 Misc.2d 104, 202 NYS2d 387, custody was awarded to the father where the mother committed adultery with a man she later married and abandoned the child. See also, People ex rel. Ragona v. De Saint Cyr, 207 Misc. 104, 137 NYS2d 275.
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“The relative financial position of the parents is not controlling in awarding custody. Salk v. Salk, 89 Misc.2d 883, 393 NYS2d 841 (Sup.Ct., NY Co., 1975), aff'd mem., 53 AD2d 558, 385 NYS2d 1015 (1st Dept., 1976). Greater wealth does not alone assure greater welfare of child. Poverty alone is not a basis for denial. Application of White, 118 AD2d 336, 505 NYS2d 116, (1st Dept., 1986).”
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Lawyers frequently illustrate their arguments by analogy, particularly one which warns the court of unanticipated consequences. Imagine if a wealthy couple from Beverly Hills desperate to adopt could pick any ghetto child and argue that they could provide that child with a better life than its parents.
New York courts have clearly stated that judges may not inquire into religious beliefs and practices of a parent and base custody decision on determination that such beliefs and practices would or would not be in the child's best interest. Aldous v. Aldous, 99 AD2d 197, 473 NYS2d 60 (3d Dept.), appeal dismissed, 63 NY2d 74 (1984), cert. denied, 469 US 1109, 105 S.Ct., 786, 83 L.Ed.2d 780 (1985).
Courts may, however, consider religion as a factor where the child developed actual ties for a specific religion or where particular religious practices threaten health and welfare of child. Otherwise, New York courts leave such decisions to the parties. If religion is constitutionally off limits, surely political beliefs and loyalties are. If I felt the necessity to wander into collateral rights, I would have argued that denying Mr. Gonzalez the prompt return of his son violates the First Amendment guarantee of freedom of political belief. The same reasons that underlie the line of Supreme Court cases prohibiting government from favoring one religion over another underlie prohibiting political beliefs, even those that are unpopular.
Continuity also reinforces “the superior rights doctrine,” as does priority. How many fathers have lost any chance at contesting custody against a less fit mother on the prevailing attitude that a known evil is preferable to an uncertain good? Instead of a political treatise distinguishing Cuba from really inhumane regimes, the ACFC brief should have left it as “Bad as Cuba may be, it is all Elian knows.”
Fathers’ rights would have been better served by seizing the ground that Elian’s Miami relatives lack standing, and never looking back. We must steer clear of the internecine war between the various anti-Castro factions here and the Cuban government which are attempting to manipulate the boy for their ends. But such a characterization is impressionistic and subjective and therefore difficult to prove.
More importantly the American people are watching confused and uncertain. The media fails to familiarize readers with the law because it is driven by its own agenda. We must pour oil on troubled waters. The best way to do that is to simplify our legal position and avoid arguing in the alternative and letting the adversaries pick from column A or column B.
The Writ of Habeas Corpus filed by Hirschfeld on behalf of NCFC is more consistent with the arguments made here: “Petitioner respectfully prays that a Writ of Habeas Corpus issue for the release of Elian Gonzalez from restraint by named Respondents, their agents and successors, and by such other Respondents as may be added to this Petition by Amendment, which restraint hinders or prevents his return to the lawful care, custody and control of his father, Juan Gonzalez, in Cuba.”
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“Based upon the State, Federal and International law cited here below, no State has jurisdiction over, nor a parens patriae interest in, the domestic relations custody of Elian Gonzalez. The boy's unlawful absconding, his temporary absence from Cuba, and the facts surrounding his rescue on the high seas, do not form any State jurisdictional foundation.”
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Why do fathers pretend sainthood and hesitate to assert their own rights independent of their children?
The Supreme Court does it for us in its latest formulation of parental termination. A divided court found Mississippi obligated to pay for the poor parents’ transcript, H.L.B. v. S.L.J. (1996). The court considered it "plain . . . that a parent's desire for and right to “’the companionship, care, custody, and management of his or her children' is an important interest," one that "’undeniably warrants deference and, absent a powerful countervailing interest, protection.'" (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). So termination of parental rights requires more criminal procedure protections than ordinary civil cases like divorce and custody.
The court found that Mississippi’s objective was "not simply to infringe upon [the parent's] interest…but to end it"; thus, a decision against the parent "work[s] a unique kind of deprivation." For that reason, "[a] parent's interest in the accuracy and justice of the decision . . . is . . . a commanding one." A termination of parental rights is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child . . . ."
Legal fiction
How are we ever going to convince the naïve public who never had to fight for their children that the courts engage in a legal fiction? In the vast majority of cases, visitation and termination are impossible to tell apart in practice. If we can’t meet head-on this easier challenge where the state drops the legal fiction and calls the procedure by its right name, it is not surprising that fathers’ claims will increasingly be treated to swift injustice. If the Miami family and their political camp followers win, who can argue but that Mr. Gonzalez has had his parental rights terminated by a foreign country without jurisdiction?
“Best interest” and “superior rights” mean more than who has standing in a child custody proceeding. See Santosky, 455 U.S., at 769-770M held that the state bears a "clear and convincing" burden of proof in parental termination proceedings. That is much closer to the state’s burden of “beyond a reasonable doubt” in criminal trials.
Custody determinations require hardly any objective evidence because American family law has convinced the parties and the public that visitation does not terminate parenthood. The standard is “preponderance of the evidence.” Winner-takes-all goes to the spouse whom the judge alone decides makes a 50.1% case for the better parenting abilities against the loser’s 49.9% That this effectively ends a parent’s interest, too, is a discussion outside the parameters on this article.
Unfortunately, the ACFC brief also argues stale evidence: “On November 22, 1999,” the brief asserts, ”Elian Gonzalez was taken by his mother and her boyfriend on a dangerous journey from Cuba to the United States. Elian was taken without his father’s knowledge or consent, even though the father has joint custody of him pursuant to the terms of the parents’ divorce. Elian’s mother and boyfriend died during the voyage, and Elian was found clinging to a rubber tire in the sea near the city of Miami.”
If the mother had survived and the United States had granted her asylum this argument might have been necessary. But the statement is irrelevant to the facts as they are.
Why weaken Mr. Gonzalez’s preemptive right by asserting dead claims? Whatever rights and intent the mother had in mind died with her. Even if Florida treated any hearsay statement in the last moment of her life as a holographic will, it would fail before the right of the surviving parent. Joint custody vanished at the moment of her death. It only clutters the ACFC claim that Mr. Gonzalez “routinely cared for the child and that both sets of Elian’s grandparents, maternal and paternal, live in Cuba and seek the boy’s return,” Under the ‘superior rights doctrine” it isn’t necessary to prove fitness per se. But if one chooses to open that door, one may subject one’s self to cross-examination on the issue. Besides, such pleadings only give credence to the impudence of the Miami relatives, who are using their wealth and connections to make a political football of the boy.
In line with this reasoning, I am disturbed by the brief’s assurances respecting Gonzalez’s freedom to act. The “superior rights doctrine” doesn’t require that we either speculate or guarantee to the decider of law and fact that Gonzalez is acting freely according to our definition of freedom. So long as returning Elian to Cuba would not jeopardize his well-being in a way that would rise to “child abuse” it only strengthens those opposed to Gonzalez’s rights in our adversarial system. Suppose we are challenged to prove our assertion?
Political pawn, or prisoner?
Members in both houses of Congress on January 24th, 2000, introduced bills to make Elian Gonzalez an American citizen in a move to block the Clinton administration from sending the boy back to Cuba before a Florida court hears the case in March. Senate Majority Leader Trent Lott, Mississippi Republican, told the Senate the bill "to grant citizenship to this young boy" could come up for debate as early as Wednesday. A competing bill introduced by Reps. Charles B. Rangel, New York Democrat, and Ray R. LaHood, Illinois Republican, called for Elian to be returned to Cuba. Note that Republicans are no more interested in protecting fathers rights; in fact, as here, they are sometimes less so.
“Numerous studies," contends the ACFC brief, “have been conducted in the social science community about the severe negative effects the absence of a child’s father from his life can have upon his development.”
Certainly not most studies or fathers would have a roughly equal chance of winning custody, confirmed by results. Over 90% of disputed custody awards would not be to the mother. The disagreement among sociologists, etc. may mark the difference between an impartial minority and the vast majority who practice what is politically correct. Given such studies as Silverstein and Auerbach, “Deconstructing the Essential Father,” American Psychologist June, 1999 Vol. 54, No. 6, 397-407 is it in the interest of fathers to promote judicial decision-making by psychologists, psychiatrists and sociologists? Is it in our interest to contribute to an erosion of “due process” by the drift of our courts from a legal to a medical model even in those cases where the law and practice don’t yet require it?
“The INS Guidelines for Children’s Asylum Claims follow international law and procedures in other countries such as Canada in insisting that even when applying the ‘best interests of the child’ standard, the principle of family unity is the foremost goal” claims the ACFC brief. “The Guidelines indicate that the asylum adjudicator should be guided by international accords such as the United Nations declarations and conventions in this area. See Guidelines, pp. 2“
Law, however, is pragmatic. Where American law has become more corrupted than some other legal systems it might be useful to cite them. But in this case, American law is preferable to Canadian and even more so to the rapidly changing United Nations agencies’ feminist code. We may find that what we have advanced will be turned on us. (see below).
There is much to be said in reminding the Federal government in the Gonzalez case that in a world of sovereign nations rights are reciprocal. It would, therefore, have been better to quote Friedrich v. Friedrich, No. 94-3832 (6th Cir., 1996). regarding the Hague Convention on the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610, to Thomas Friedrich, age six. The Federal circuit court affirmed the district court's order that Thomas was wrongfully removed from Germany and should be returned.
It based its decision on the rule that the abducted-to nation [the United States] has jurisdiction to decide the merits of an abduction claim, but not the merits of the underlying custody dispute. [That was for the German court. Here both natural parents are parties] Hague Convention, Article 19; 42 U.S.C. § 11601(b)(4); Friedrich I, 983 F.2d at 1400; Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995); Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995); Journe v. Journe, 911 F. Supp. 43 (D.P.R. 1995). Second, the Hague Convention is generally intended to restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court. Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1986); Friedrich I, 893 F.2d at 1400; Rydder, 49 F.3d at 372; Feder, 653 F.3d at 221; Wanninger v. Wanninger, 850 F. Supp. 78, 80 (D. Mass. 1994).
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January 25, 2000, a Cuban mother who made it to the United States has demanded that her young son, whom she left behind with his grandfathers, be sent to live with her in the United States.
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The Supreme Court has agreed to hear Troxel v. Granville, 137 Wn.2d 5 (1998) from Washington state this term. While the specific issue is grandparents’ visitation, which cuts both ways for fathers, the reasoning could weaken “the superior rights doctrine.” One notable Supreme Court reporter pointed out that the court ordinarily does not agree to revisit issues unless it intends to make a change. The last time the court commented on family rights was twenty years ago. Will “superior rights” be undermined? I wouldn’t be surprised. That is certainly the desire of the American Bar Association and those invested with the power to propose uniform state law for state legislatures to consider. Most uniform laws are adopted in large part by the majority of states.
ABA Proposed Uniform Termination of Parental Rights:
“Proposed Uniform Laws are drawn up the National Conference of Commissioners on Uniform State Laws, made up largely of lawyers and law professors who specialize in that field of practice. The proposals inevitably have a radical bias and serve to foreshadow the development of the law.
Introduction:
….Termination may be voluntary, based on the informed consent of the parent, or, termination may be involuntary, following court proceedings brought against the parent.”
The drafters pay lip service, like the Supreme Court, to high-minded principles, then proceed to their devious intentions:
“Severing of the parent/child relationship is a profoundly serious matter, but it is essential legally to clear the way for adoption. Parental rights are rightly cloaked in constitutional protections and should not be terminated without full and careful due process of law. [But] State law should allow parental rights to be terminated only when it is clearly necessary to ensure safe and permanent homes for children…”
Guidelines And Commentary:
“State law should provide that the child, the child’s attorney and a representative of the child welfare agency are authorized to file a petition to terminate parental rights. The child’s attorney or a guardian ad litem who is an attorney should be able to file a petition for termination because it is the child’s interests that are at stake….
….First, a termination of parental rights proceeding should be considered part of the overall child abuse or neglect case….
Third, the court must be empowered to require that parties put evidence before it to enable the court to make those choices. [“Burden shift” Comment and Emphasis added] Without that power, the judge cannot ensure that a permanent placement decision will be made within the time the law requires. When the court orders the filing of a termination of parental rights petition, it has determined that there may be sufficient facts to justify this action. The court is requiring the parties to produce evidence to permit the court to determine whether or not the option of termination is legally justified. [Emphasis added]….
1 Trials Without Juries: We recommend that State law provide that termination of parental rights cases are tried without a jury. [The following commentary is also useful in giving the reader a peek into the thinking process of these lawgivers.]
Commentary:
Among the reasons for having termination proceedings tried by judges rather than juries are the following. First, jury trials proceed more slowly than trials by judges and thus delay permanency for children. Second, jury trials take far more attorney and court time than trials by judges, thus crowding the court docket and preventing attorneys from preparing other cases. This further delays permanency for children. Third, for reasons described elsewhere, the quality of decisions in child abuse and neglect cases is better when a single judge hears all stages of the same case. (See Chapter IV, Court Process.)….
Grounds for Termination of Parental Rights: Generally
1 Termination of Parental Rights Grounds, Generally: We recommend that State law authorize the court to terminate parental rights if the court finds as follows:
By clear and convincing evidence, that one or more of the statutory grounds exists (See Guidelines 11-22); and
By a preponderance of the evidence [emphasis added] that termination is in the best interests of the child [emphasis added]
What an irony if we should find the ACFC brief becomes a footnote in these ABA and NCCUSL recommendations.
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