Elian Case Resonates In German Custody Situations

by Jim Lobe

Germany, it turns out, is one of the world's worst violators of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, to which both the United States and Germany are signatories.

The treaty establishes that a child taken to another country without permission of one or both his parents should be returned to his or her "habitual" country of residence unless it can be shown in court that there would be "grave risk" of physical or psychological harm." Moreover, the treaty says that the decision on custody should be made by the courts where the child habitually resided.

In Elian's case, that requirement did not technically apply, because Cuba is not a signatory. But a major reason why the Justice Department fought so hard to return Elian to his father was that failure to do so would weaken the obligations of other countries to abide by the treaty in cases involving U.S. parents.

"There are some 1,100 cases where our consular affairs officers are working to reunite (U.S.) parents (with their) children around the world, and the principle of the pre-eminence of the father or the mother in these cases having the right to be re-united with their child is one that we push very, very hard," said State Department spokesman James Rubin last April when the Immigration and Naturalization Service (INS) revoked the rights of Elian's great-uncle to his custody in favor of his father, Juan Miguel Gonzalez, who had just arrived in the United States from Cuba.

"We are concerned that failure to return and re-unite Elian with his father quickly could have very, very negative implications for parents in the United States when their children are taken abroad," he said.

Indeed, the State Department's 1,100 open cases, of which 63 involve children taken to Germany, may only be a small fraction of the total extent of the problem. The Virginia-based National Center for Missing and Exploited Children estimates that, of the 165,000 cases of parental kidnapping reported in the United States annually, as many as 10 percent involve the abduction of a child by one parent to a foreign country.

That appears to have taken place in Elian's case. He was taken by his mother and her boyfriend aboard a small boat intended to take them and a dozen other people from Cuba to Florida. The boat, however, capsized; all but three of its passengers, including Elian, drowned.

Elian, who was taken after a short hospital stay to his great-uncle's home in the Little Havana section of Miami, soon became the subject of an international custody battle that dominated the news media in both the United States and Cuba. His father, Juan Miguel, insisted that Elian had been taken by his now-deceased mother without notice, let alone his approval, and demanded his return.

His Miami relatives, on the other hand, went to court, arguing that the child would be much better off growing up in the United States than in "totalitarian" Cuba where his material well-being and freedom would be much more restricted.

Echoing the terms of The Hague Convention, the Justice Department insisted that Elian's interests were best served by returning him to his father, a position that was mostly sustained by today's appeals court decision.

Congress has held two hearings on the problem and last month approved a resolution condemning Germany, Austria and Sweden for "consistently violating" The Hague Convention.

Two German cases detailed by the Washington Post have provoked particular outrage. In one, a U.S. father, Joseph Cooke, lost his children to foster parents when his wife abducted them to Germany in 1992 and then transferred custody to the government when she decided she could not care for them. Although he persuaded a New York court to grant him legal custody, the German courts refused to honor the judgement, eventually finding that uprooting the children from their foster parents would result in "severe psychological loss."

In a second case, Jim Rinamen returned home from work one day in 1996 to find that his German mother-in-law, wife, and 15-month-old daughter had abruptly left for Germany. He followed them there and sued for custody, but an appeals court awarded his wife custody without taking any testimony from Rinamen himself. He was awarded limited visitation rights, but the court has failed to enforce them.

Apparently as a result of recent publicity, Rinamen was finally able to meet with his daughter three weeks ago, the first time since she was taken from his home.

After meeting with Clinton in Berlin, Schroeder announced that the two leaders had agreed to set up a joint task force of experts to review such cases with the intention of at least facilitating visits by U.S. parents of their children in Germany. "We certainly were very agreed that court rulings and decisions have to be accepted where taken," he added.

But some observers here are still skeptical, noting that France has complained about German foot-dragging in setting up a similar commission to deal with some 86 pending custody cases involving French parents. French President Jacques Chirac recently charged German courts with applying "the law of the jungle" on custody cases, and Britain has also spoken out against the way Berlin has dealt with the problem.

But Germany is not the only problem, according to recent accounts featured in the Post. Echoing the Miami family's argument that Elian would be better off being raised in the United States, courts in the Middle East, Japan, the Bahamas, and elsewhere have ignored U.S. court rulings on custody and refused to return children on the grounds that growing up in the United States was not in their best interests.