Constitutional Opinions: Children Adrift

...Congress was so exercised that it enacted a statute, in the first year of the Clinton administration, making this sort of"abduction" a federal crime...

...Of course, as our commentator acknowledged, a youngster might not be old enough to get the last word...

...Yet one brave voice insisted early on that authorities could not take for granted that the expressed will of a father was actually in the best interest of his child: "The presumption of identity of interests should be rejected [when] the child has interests demonstrably independent of those of his parent as determined by the consequences to both" of the child's retum...

...A wide range of advocacy groups has become involved in this one-on both sides...

...No one is really sure what's best for the child in most custody cases...

...Since she has yet to encounter a law that could stand up to the political calculations of her bosses in the White House, "the law" here turned out to be simply another Clinton call...

...Hawaii, remember, was supposed to be the first state to recognize gay marriages (before the legislature got cold feet and the Vermont Supreme Court recently seized the chance to prod its state toward this dubious distinction...

...Oops, that turned out to be incredible, as even the New York Times must have sensed when it tried to work "the law" and "Clinton administration" into the same sentence (at least without intending humor...

...would find it harder to demand return of American children held in foreign countries...

...But he does have a lot more leverage on the mother...

...Even Janet Reno with all her astonishing legal agility can't close it now...

...Cuba is not a signatory, however, which means it does not recognize any obligation to the U.S...

...If such people were allowed to vote, the Supreme Court reasoned, they might eventually change the law to allow polygamy, and of course the government needed to prevent that...

...to let the status of American-raised children be decided by U.S...

...The argument looks rather different in the mouths of liberals who are normally on Hillary's side when it comes to curtailing parental rights...

...The United States has ratified it as have some fifty other countries, including a number of Latin nations...

...The law didn't want to hear about homosexual couples in any settingexcept as objects of prosecution under ancient laws against sodomy...

...Mormons tried to establish extended households based on polygamy...

...From the Washington Post and the New York Times, through a long roster of liberal columnists, there was near unanimity that the boy must be returned to his father in Castro's Cuba...

...courts...

...You can read about it in the Yale Journal of Law and Feminism, which still complained about too much stereotyping in all these rulings against stereotyping...

...Remember those sensational disputes about the custody of infants whose birth mothers wanted to keep them after promising to give them to adoptive parents...

...So a new argument was offered...

...A few decades ago, state welfare agencies routinely pressured unwed mothers to give up their babies for adoption, and they wouldn't for a moment have thought of allowing those babies to be adopted by lesbian couples or male homosexual couples...

...The U.S...

...Ask a liberal whether the father-or even the mother-has any rights when their under-age daughter wants to have an abortion...

...In a less publicized but weirder case in New York, a gay man agreed to be the sperm donor for a lesbian couple...

...So the prevailing "perceptions and prejudices" are bound to color how judges or other authorities read the relevant "facts" in any particular case...

...So this commentator condemned the government's failure to "evaluate [the child's] independent interests" and its failure to give him "the chance to articulate his interests for himself": "Feelings of the young should at least be recorded and weighed...

...Just finishing Yale Law School, primed with trendy activist nostrums of that era, she derided the emptiness of established legal formulas like "the best interest of the child"-which she described as "not properly a standard" at all, but a mere "rationalization," "an empty vessel into which adult perceptions and prejudices are poured...

...In the meantime, it would be nice if we could rescue poor Eli~in from Castro's tyrannical clutches...

...The Immigration Service itself had originally conceded that the boy's fate could be decided by a custody suit in Florida courts...

...This is a serious issue-though hardly decisive in this case...

...Good luck to the Supreme Court...

...Finally, and most curiously, there was the argument that Eli~n must return to Cuba because the rights of the father should always prevail...

...Republican legislators have complained ever since, however, that the Clinton administration does not enforce this law...

...A lower court in Washington sided with the grandparents when they sued for visitation rights...

...government, we were told, must return Gonz~ilez because otherwise the U.S...

...Typically, a foreigner who has married an American woman and then divorced or separated decides that their children would be better off with his relatives back in, say, Iran and moves them there...

...She absolutely did argue, in just these words, for new means to take children away from their parents...

...Back in 1973, Hillary scoffed at "the pretense that children's issues are somehow above or beyond politics...

...But there was such compelling reason to let Eli~in's father drag the boy back to Cuba...

...The commentator was Hillary Rodham...

...Nothing is clear in this case-except the evil of the Castro regime, whose endless mass mobilizations over little Eli~in ensure he can never have a normal life in Cuba while Castro remains...

...In the meantime, though, the notion that it can be decided "without politics" is a little late in the day...

...R espectable opinion was adamant about the case of Eli~in Gonz~ilez, the six-year-old refugee who made it to loving relatives in Miami, after his mother and others lost their lives in the Florida Straits...

...Here's an interesting fact...

...EREMY RABKIN is a professor of government at Cornell University...

...In 1996 , the Justice Department estimated that a thousand children each year are "abducted" to foreign countries by "noncustodial" parents...

...That won her a reputation as a "bold, creative thinker" on children's rights and helped launch her decades of involvement with the Children's Defense Fund...

...Multiple parents7 We have forgotten that this practice wasn't invented by hippies or divorced individuals with complicated new families...

...In one case when the father returned to American soil and was duly prosecuted, the Justice Department let him go after a brief prison sentence, though the child remained in Egypt...

...Like movements for the rights of minorities and women, she wrote, "advocacy of rights for children...highlights the political nature of questions about children's status...

...But the appeals court overturned this ruling on the grounds that it would stereotype lesbian families to suggest they needed a fatherly presence...

...Still, the sensible thing is not to leave the matter to government bureaucrats but to involve the local community directly: Even "recommendations about terminating parental rights" would be most properly made by a local "board composed of citizens representing identifiable constituencies--raeial, religious, ethnic geographical"--those groups best able to understand the child's true situation...

...And she was right...

...The law is the law and the Clinton administration simply had to follow the law as it always does...

...So why wasn't Eli~in's case different7 Because having a baby can change a girl's life-whereas forcible return to a Communist tyranny is just one of those inconsequential little things that happen to kids...

...T he Supreme Court has a case this term on the visitation rights of grandparents...

...Though he didn't actually live with them, this father was somewhat involved in the upbringing of these girls--or was, before he committed suicide...

...No way, said the federal government in the nineteenth century...

...The relevance of Hillary's line of thought to the Gonz~ilez case was lost on her husband, however, when he decided that the boy must be returned to Cuba...

...They are the parents of a young man who fathered two little girls with a woman he didn't marry...

...Sorry...

...The mother married someone else and the new guy doesn't want the parents of her old boyfriend hanging around...

...We have certainly liberalized in all sorts of ways since then, but this does not mean the state no longer coerces...

...As the Times and so many others explained, it was wrong to "politicize" the case...

...She did so in a x973 article in the Harvard Education Review, when the idea was to take children away from American parents...

...But after Castro started hurling angry demands and the State Department recommended that he be accommodated, Janet Reno made an abrupt change in policy...

...Having allowed strange, perhaps dysfunctional families to arise, we think maybe the state can fix them after the fact with the right mix of visitation rights or outside challenges from other relatives...

...Hillary's friends helped to open this box...

...It didn't just prohibit polygamy, but went after the people who merely advocated this kind of family...

...It is still called on to exercise its coercive power when all these liberated people in their new relationships fall back on the state to settle their differences on who gets what, why, and when in relation to children or other "family" claims...

...The father/donor promised not to involve himself at all in the child's upbringing, but then, somehow, he became interested in the child...

...The advocacy groups are mobilized because this is not an isolated case...

...Well, Hawaii provides that an outsider should be able to make custody claims for the child, and courts should consider "the best interest of the child" without overly strong presumption to the biological parents...

...A number of con44 Marc h 2 o o o _9 The American Spectator servative commentators, fearful of opening the door to the wider ambitions of Hillary Clinton and the Children's Defense Fund, have insisted that the government has no business secondguessing the wishes of Eli~in's father...

...There is an international treaty to deal with such disputes: the 198o Hague Convention on Civil Aspects of International Child Abduction...

...In the name of the family, the state supreme court sided with the stepfatherwho, unlike the grandparents, has no blood tie and hadn't been with the children all that long...

...Only a few years ago, that was praised as "progressive...

...Of course, they will say, that case is different...

...We have, legally and morally, no obligation to Cuba to do for it what it will not do for us...

...By the 189o's , federal law made men ineligible to vote if they so much as belonged to an organization endorsing polygamy, even if they did not themselves commit or even advocate this practice...

...He seems to have a very nice family in Miami, even if it is a bit vanilla by New York standards...

...The American Spectator _9 Ma r c h 2 o o o 45...

...The law must be followed regardless of how much some interested constituencies might agitate against it...

...Does anyone still know what a "non-political" approach to the family would look like...

...After a series of visits, he sought a court order to ensure regular visiting privileges...

...He should have them, said a lower court, reasoning that denial of such privileges would endorse stereotypes against gay sperm-donor fathers...

...But it's absurd for liberals to imagine they still get to decide when there is "established law" and when there is "a legitimate issue...