CUBAN FATHER FIGHTS FOR CUSTODY OF DAUGHTER IN MIAMI

by Jonathan Bell

(IPS) WASHINGTON -- Seven years after the Elian Gonzalez case, a custody battle is once again raging in Miami over the fate of a Cuban child.

The case is eerily similar to Elian's: A Cuban father is trying to win custody of his 4-year-old daughter, who is presently living with a foster family in Florida, so that she can return to live with him on the Caribbean island.

The battle is being waged in a Miami family court between the girl's father, Rafael Izquierdo, and her foster parents: former sports agent Joe Cubas, who is well known for his success in persuading Cuban baseball players to defect to the United States, and Cubas' wife.

The case is being dubbed Elian II and some are even calling the girl "Eliana" because of the similarities between the two cases.

The custody battle over Elian Gonzalez drew national headlines both in the U.S. and Cuba seven years ago when Elian, who was then 5 years old, was rescued along with two other adults after their boat from Cuba capsized off the Florida coast, drowning his mother and 10 others.

Right-wing sectors of the Cuban-American community in southern Florida mobilized to keep Elian in Miami with the family of his great uncle, but a U.S. court ruled that he should be returned to his natural father, Juan Miguel Gonzalez-Quintana, who had come to the U.S. to plead his case.

Federal agents enforced that decision in a weapons-drawn, pre-dawn raid on the uncle's home, sparking widespread outrage among anti-Castro forces in Florida. Some analysts believe that the Elian crisis may have helped tip Florida's critical electoral votes into the Republican column by the narrowest of margins in the 2000 presidential election, thus handing victory to George W. Bush.

However, the "Eliana" case has not received nearly as much media attention.

The girl and her half-brother -- whose names have been withheld by court order -- legally entered the United States with their natural mother, Elena Perez, in 2004, after Perez won a visa in the U.S. immigration lottery. Izquierdo, who was not living with Perez and his daughter at the time, did not object because, as he said in a subsequent interview, he thought the girl could have a "better life" with her mother in the United States.

But once in the U.S., Perez was unable to establish a stable home for her children, apparently as a result of psychological problems. After she tried to commit suicide in December 2005, Florida's Department of Children and Families deprived her of legal custody of her two children and approved the Cubas couple as foster parents.

The Cubas family adopted the girl's 13-year-old half brother with the mother's consent and hopes to adopt the girl, as well. The family asserts that it has bonded with the children, and that the two siblings, even though they have different natural fathers, should not be separated.

"For the past year, year-and-a-half, we have provided these children with a safe and nurturing home," Cubas told reporters this week. "The [girl] is extremely happy and extremely bonded to her brother and to us."

Upon learning that Perez had lost custody of the child, Izquierdo, a part-time fisherman who lives in Cabaiguan in central Cuba, retained a U.S. lawyer to reclaim custody. He also applied for a visa to come to Florida after the Department of Children and Families ruled that he would have to make his case in person. During the several months he was forced to wait until he received his visa, the girl remained in the Cubas' custody.

In a break with its usual practice of siding with the natural parent, the Department of Children and Families has backed the Cubas family, alleging in court that removing the girl from a family that she has bonded with would amount to child abuse.

That allegation, however, was rejected this week by the judge in the case, Jeri Cohen. "I've never seen anything like this [argument] in all my years of doing dependency," Cohen said.

Lawyers from the Department of Children and Families have also argued that Izquierdo effectively abandoned his daughter by letting her come to the United States with her unstable mother. In that respect, they have said, Izquierdo cannot be considered a fit father. Under U.S. family law, courts must ultimately decide custody battles on the basis of what, in their view, is in the "best interests" of the child.

But Ira Kurzban, his lawyer, counters that Izquierdo simply wanted a better life for his daughter and could not have known that Perez would attempt to commit suicide.

Kurzban also pointed out that while Izquierdo did not write to the daughter after she left Cuba, he did write to Perez shortly after she lost custody of the children, thanking her for photos and videos of their daughter she had sent to him from Florida.

"You know that I did not want her to leave," he wrote, "but I gave way because it was to be with you, but if that isn't so, I am here to take care of her." Izquierdo is currently married and has one daughter living with him and his wife in Cuba.

"With everything I have seen so far, you do not have abandonment," said Judge Cohen, agreeing thus far with Izquierdo's case.

The case, whose proceedings became public last week after the judge removed a gag order, has so far generated relatively little controversy, compared to the national, and even international, brouhaha over Elian, who remains with his father in Cuba.

"Commendably, the community is doing its best not to let this case become politically polarizing, as happened with the Elian case," noted the Miami Herald in an editorial this week. The newspaper's editorial also criticized the Department of Children and Families' position.

"Why go through that again? Why embarrass themselves again?" asked Wayne Smith, senior fellow and director of the Cuba Program in the Center for International Policy, speculating as to why right-wing Cuban Americans have not yet mobilized behind Cubas. He predicted that "the girl will go back to Cuba ... and maybe the Cuban-American community senses that."

Still, the Herald editorial noted that, if Cohen rules for Izquierdo, the judge herself could suffer a backlash at the polls when running for re-election. She is not expected to issue a final ruling on "Eliana's" custody for several weeks.