What's wrong with Reno's action is this: The legitimate interests of the child's mother have been ignored.
When a person dies, their estate has to be administered. Whether the person leaves a will or not, is it not the basic function of probate court to determine what the wishes of the deceased would be? If the rule is to identify the closest relatives, is this not based on the premise that this generally would be the wish of the deceased?
And what about the practice of a deceased person's body organs being donated to a transplant patient. Is it not the wishes of the deceased person (i.e., of that person when he or she was alive) which decides this?
And so, why should not the legitimate wishes of a parent, when he or she was alive, be brought to bear in determining the fate of his or her child, even though that parent has died? Isn't the fate of a child just as important to a parent as the fate of one's property or body organs after one's death? As a practical matter, how important is it really for a person to be able to control their body organs after their death? If anything, the fate of their child is more important.
Now it is obvious that Elian's mother wanted her son to be raised in America because she thought it was a better place for him than Cuba. So, why shouldn't her wish be given proper consideration in deciding where Elian should live?
Yes, but his mother should also determine where he lives, if she chooses. There is a conflict here between the wishes of the mother and that of the father. Why should the father's wishes take precedence in this case? Did not this boy live with his mother in Cuba rather than with his father? If she was his primary parent, why shouldn't her wish take precedence?
A parent's wish for his or her child can be just as valid after the parent's death as when he or she was living. Isn't the parental right fundamentally a presumption that the parent knows what is best for the child? So, did Elian's mother know what was best for her son back in November '99 when she departed from Cuba? Was she right to think he would be better off in America?
Why not, considering that she was his parent and presumably knew better than anyone else. And if her hope and desire for her son's future was correct at that time, why shouldn't it still be correct today? Just because the mother now is dead does not mean that her hope and vision for her son's future is also dead. A good vision or dream or hope is not invalidated because the one having it got snuffed out.
(Allegations that the mother's true interest was only to be with her lover in Miami, and that she was thoughtless to risk the child's life at sea, and so on, are all matters which the court should decide, as well as matters about the father's past, and about the conditions in Cuba under Castro's regime. Only a proper court should decide such things, not rumors from TV documentaries or talking heads or from Time Magazine, and not a politician or a political appointee such as the Attorney General).
It makes no sense to say that the mother's plan for her son's future was correct six months ago but is not correct today.
Yes, she hoped to reach America alive. But no doubt she also knew the risk she was taking and that any or all of those aboard might perish. What was her contingency plan, or hope, in the event that she would perish but her son would reach America alive?
Can anyone believe she would have wanted her son to be returned to Cuba in the event she didn't make it herself? How many Cuban exiles in America would say they would have wanted their son or daughter who reached America to be returned to Castro's Cuba in the event that they themselves, the parent(s), had not survived the trip across?
The most reasonable assumption is that Elian's mother would have wanted the child to remain in the U.S. and be raised there by relatives, rather than being returned to Cuba. She must have believed that America per se was a better place for her son, even if he would be there without her. If she didn't think this, why would she take him from Cuba in the first place and risk losing her life at sea?
Only a child custody court can determine for sure the mother's true sentiment and other relevant facts, and until this is presented before such a court and balanced against the interests of the surviving father, one cannot claim that parental right has been upheld. What other kind of court is appropriate to balance the legitimate interests of one parent against the other's?
Not necessarily. Not if the other parent, though now deceased, had a legitimate desire for the child which now conflicts with that of the surviving parent.
But, one may argue, what is the meaning of "parental right" if not that the parent be with the child and raise that child herself or himself? A dead parent cannot be with the child or raise the child.
True, a dead parent cannot be with his or her child. But for the parent to "be with" the child is not absolutely in every case required in order for that parent's right as a parent to be exercised. Rather, the parent may exercise this right by designating someone else to raise the child. Or the parent may put the child up for adoption and may attach some conditions to this adoption.
It is control of the child's future which basically constitutes the parental right.
To "be with" the child and raise the child oneself may usually be what the parent chooses when he or she exercises his or her right as parent. But not always. Prescribing conditions of the child's future, even though separated from the child, is also an exercise of parental right.
What "should always" be the case is not necessarily that the child be with the (sole surviving) parent, but rather, that the parent(s) make choices regarding the child's future. And if the parents were separated, the one with whom the child lived should get preference in the event the two are in disagreement (such as a disagreement as to where the child should live).
Again, only a regular child custody court can decide such a matter.
No, what is clear is that Reno and the INS have imposed their decision. They were not forced by any law to make this particular decision. They could have chosen to let this case be decided in family court. No court or law forced them to decide the case as they did.
Yes, she had the right to make this decision. But she also had a right to make a contrary decision. Her decision was dictated by her opinion, which is a wrong opinion, because it ignores the legitimate interests of Elian's mother, whose right to determine the boy's future is just as valid as the father's, if not more so.
So, until the wishes of Elian's mother have been brought to bear in the case, all legitimate interests have not been weighed and there has not been justice.
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