The Case of the 6-Year-Old ‘Refugee’

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By Amy Bracken

The international hot potato over six-year-old Elian Gonzalez of Cuba landed in the lap of a family court judge who didn't really want to be in Family Court.

Circuit Court Judge Rosa Rodriguez was transferred to family court last fall because of an investigation into alleged campaign finance violations in her election to the bench. It was during this judicial detour that she issued the controversial ruling allowing the boy's U.S. relatives to keep him in Florida - against the demands of his biological father in Cuba, a ruling by the U.S. Department of Justice, and possibly against international law.

But Rodriguez, who has served as a public defender and a judge in juvenile court, used the doctrine of parens patriae - the role of the state as guardian of the child - to claim jurisdiction in halting Elian's return to Cuba so that a custody battle can proceed in her court.

But did she overstep the bounds of Family Court? While the decision ignited celebrations in Florida's intensely anti-Castro Cuban community, it pitted Rodriguez against the Clinton administration (which says she has no authority in the case) and prominent experts on international and youth law.

"She doesn't understand the law," said Bernard Perlmutter, director of the Children and Youth Law Clinic at the University of Miami. "The basic principle of international [custody] law, like national law, is the right of parents to raise their kids."

"Her ruling was understandable," said retired Dade County Juvenile Court Judge Tom Petersen, before whom Rodriguez appeared as a public defender. "She has an excellent reputation."

Out of Place?

Nothing in her public background suggests that Rodriguez, 39, would seek to be a trail blazer on youth issues or a rebel from the bench. Raised primarily in Tampa, Fla., Rodriguez got her B.A. in economics and interned with Sen. Lawton Chiles (D-Fla.) before attending Yale University Law School. There she won the C. LaRue Munson Prize for excellence in the investigation, preparation and presentation of immigration and prison rights cases. She is not married, has no children and her family background is partly Puerto Rican.

Whatever her legal accomplishments, she was not building a youth-oriented career. She has worked for at least three private firms, specializing in business matters such as commercial and general civil law, especially franchise litigation. She did leave private practice for a while to serve four years in the Dade County public defender's office, including a year in juvenile court.

In 1998 she ran for Circuit Court judge, in what the Miami Herald called a "bitter election." She won and was assigned to the Juvenile Court's delinquency division, a common post for new judges.

But last year her election foe, Ann Mason-Parker, accused Rodriguez of campaign finance abuses, sparking an investigation by the Miami-Dade state attorney's office. Rodriguez publicly proclaimed her innocence. She was temporarily transferred to Family Court so she would not preside over cases involving prosecutors from the office investigating her. "Her place is really in criminal court," Petersen said.

It was soon thereafter (Nov. 25) that fishermen found Elian floating on an inner tube off the Florida coast; his mother and 10 others had drowned fleeing Cuba. When Elian's biological father (who is divorced from his mother) demanded the boy's return to Cuba, Elian's great-uncle in Miami moved to keep him in the United States. The U.S. Immigration and Naturalization Service (part of the Justice Department) ruled that the boy must go back, but the great-uncle sought custody in Family Court.

"A lot of [Family Court] judges I know were worried about getting that case," Miami-Dade Circuit Judge Stan Blake told the Herald. "It's a difficult case, politically." But Rodriguez's supporters said she would not be intimidated or let emotions drive her decision.

Imminent Harm

With thousands protesting almost daily in Cuba for Elian's return, with Cuban leader Fidel Castro stirring the case into an international human rights cause and with Washington ruling that the boy should go back by Jan. 14, Rodriguez shocked legal observers by ruling on Jan. 10 that Elian was going nowhere soon.

Her reasoning: if returned to Cuba, he "would be subjected to imminent and irreparable harm, including loss of due process rights and harm to his physical and mental health and emotional well-being.... Where a Florida court, even one which may otherwise lack jurisdiction over a visiting child, is presented with allegations of imminent harm or physical or emotional danger to a child, it is empowered ... to issue a temporary protective order which will preserve the status quo pending a full hearing." In short, the great-uncle had demonstrated that he should get his day in court for his custody petition.

Critics charge that Rodriguez doesn't understand Florida's family law or was trying to boost her standing among Cuban voters. "Everybody thinks it's just a political thing," Petersen said. But "that would be out of character for her."

David Abraham, immigration law professor at the University of Miami, called the ruling "an attempt to circumvent the law." U.S. law and international treaties, he said, dictate that custody challenges must take place where custody was originally determined.

Critics also blasted Rodriguez for not recusing herself, because a volunteer spokesman for Elian's U.S. family had been a paid consultant on her campaign.

Friends and colleagues have defended her on all counts. "She ruled that the plaintiff ... had the minimum requirements needed" to justify a hearing for temporary custody, said Miami lawyer Victor Diaz, a friend of Rodriguez's since Yale. In an opinion published in the Herald, Diaz also argued that under the Circuit Court's guidelines, Rodriguez had no obligation to remove herself from the case.

"I believe that she would have loved to have recused herself," he wrote. Regardless of how she ruled, this "was a no-win situation for a young judge with a promising career."

- Shana McBean and Julie Vaccarelli contributed to this report.