The Elian Gonzalez child custody case may thrill foes of Cuban leader Fidel Castro, but it may jeopardize the return of more than 1,000 American kids who've been scattered across the globe.
International parental abduction cases are increasingly common: the U.S. State Department is offering consular support in 1,100 cases of American kids who are being illegally held abroad by one parent, usually a noncustodial parent. But federal officials say the stalemate over returning six-year-old Elian to his father in Cuba damages the chances for parents in the United States to recover their own children.
"Our credibility and effectiveness ... could be seriously undermined and jeopardized," said State Department spokesman Jamie Rubin. "The reality is that other countries will scrutinize our practices; and our effectiveness therefore depends on our ability to adhere at home to the principles that we espouse."
Those principles are laid out in the 1988 Hague Convention on Civil Aspects of International Child Abduction, whose signatories (including the U.S.) pledged to assist in the prompt return of an abducted child to the country of "habitual residence."
But the convention's shortcomings have been exposed by the Gonzalez case, which began Nov. 25 when 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 was 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 says he must go back, but a family court judge has blocked the move until a hearing is held on the great-uncle's claim for custody.
"The Hague Convention is a very important vehicle, but it hasn't always worked," said Howard Davidson, director of the American Bar Association's Center on Children and Law. The ABA recently completed a study on the implementation of the convention, to be published later this year, for the U.S. Office of Juvenile Justice and Delinquency Prevention.
Getting countries to implement the convention is a crucial issue for countless American parents and children; the 1,100 U.S. cases being handled by the State Department is far from the real total, said Georgia Hilgeman of the San Jose, Calif.-based Vanished Children's Alliance. "There are many cases where parents don't even know which country the child is in," said Hilgeman, whose own three-year-old was taken to Mexico in a noncustodial parent abduction case. "There's a lot more who don't have the financial or emotional resources or the understanding to use the system."
Another difference is that "with these cases there's no congressional outrage, no Cuban-American outrage and no Fidel Castro outrage," said David Levy, president of the Children's Rights Council, based in Washington, D.C. The CRC has issued a statement saying Elian should be returned to his father. "He has already lost his mother, we shouldn't make this into a double tragedy for him," said Levy. "And let's face it: when he goes back he won't be living with Fidel Castro. He'll be living with his dad."
The Gonzalez case comes as U.S. officials and advocates are trying to beef up implementation of the convention both here and abroad. One problem is that only 54 nations are signed on, leaving large swathes of the world (including almost all of Asia) uncovered. Great inconsistencies remain even among member nations, primarily involving the failure of local courts to fully understand and implement the convention.
Another key issue is the time it takes for legal proceedings. In the United Kingdom it typically takes five weeks to get a hearing, while in Germany the average is 26 weeks. Such delays cause great anxiety, and the abducting parent commonly uses the period to turn the child against the other parent. The kids themselves acculturate to their new country, which becomes a de facto "habitual residency."
"It is very frustrating to see our laws working for others [from other nations] when other countries are not implementing them," said Nancy Hammer, head of the international division of the National Center for Missing and Exploited Children (NCMEC). The Alexandria, Va.-based agency works with overseas partners to spread images of missing and abducted children through posters and the Internet, and helps connect U.S. parents with local nonprofits and lawyers in the countries where their children have been taken.
To show how difficult the fight can be, consider the case of Lady Catherine Meyer, wife of the British ambassador the United States, Sir Christopher Meyer. Lady Catherine has two children by a previous marriage to a German doctor, who moved back to Germany after their separation. But after the boys' visit to their father in 1994, he kept them.
An English court demanded their immediate return, a decision upheld by a court in Verden, Saxony. But the father's appeal to a court in a different town reversed the decision on the grounds that the children were German and would suffer in a foreign environment. Other courts subsequently denied the mother access to the boys on the basis that she might abduct them back. In the past five years Lady Catherine has had a total of 24 hours of supervised contact with her sons. She has become a major activist on the issue of abduction by parents.
The NCMEC recently developed a 12-point agenda to improve implementation of the convention, including a global awareness campaign, and getting court officers and police to more effectively enforce court orders involving child custody.
In addition, the organization has signed a Memorandum of Understanding with the State Department to help better apply the Hague Convention in the U.S. That means educating lawyers about the law, and finding attorneys to work at reduced rates or pro bono for foreign parents seeking return of their children from the U.S. (or more access to them).
"Ignoring the current situation [with Gonzalez], we actually apply our laws very well," Hammer said. The center has not, however, taken a position on the Gonzalez case. In fact, missing kids' champions have been largely silent on the issue, including members of Congress who have made finding and returning missing kids a defining cause. Those who say they have nothing to say about the Gonzalez case include Sen. Mitch McConnell (R-Ky.), a long-time champion and primary backer of federal funding for the NCMEC, Reps. Bud Cramer (D-Ala.) and Bob Franks (R-N.J.), co-chairs of the 145-member Congressional Missing and Exploited Children's Caucus.
Abby Hochberg-Shannon, legislative director to caucus founder Rep. Nick Lampson (D-Texas) and a staffer for the caucus, says the Elian case is "just too politically sensitive" to gain a consensus among the caucus members. Lampson himself has said Elian should be returned to his father.