Elian Ruling Could Impact Custody Cases

When they weren’t doting on their baby, Jim Rinaman and his wife worked on renovating their spacious Washington, D.C., home. Soon he would leave the Army to start a law practice, and he saw nothing but happiness in his family’s future.

Then his mother-in-law arrived from Dusseldorf, Germany.

For seven weeks, Rinaman said, she harped that the United States was an unfit environment for rearing a child. The schools weren’t as good as in Germany. The streets were dirty. Too much crime.

When it was time for her to return to Germany, Rinaman came home after work that afternoon in 1996 to find that she wasn’t the only one who had left. His wife and 15-month-old daughter, Julia, were gone too. He hasn’t seen his little girl, who turns 5 next month, since.

The attention of the nation and much of the world is focused on Elian Gonzalez, his father’s battle to have him returned to Cuba, and his great-uncle’s battle to keep him in Florida. The case is unsettling to many of the thousands of American parents fighting to have their children returned from abroad.

They fear it will be even harder to recover their children if Elian remains in the United States. State Department officials who intervene on their behalf agree. “Other countries will examine how we handle this case,” a senior State Department official said in a recent briefing.

Rinaman’s case for custody of Julia is based on the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States and Germany are signatories. It stipulates that children must be returned to the place where they “habitually resided” and that custody decisions must be made there.

A Washington court awarded custody to Rinaman. But he said a German appeals court, based on his mother-in-law’s testimony, ignored the Hague Convention. She had testified she’d once overheard Rinaman saying his wife could have the child, an assertion Rinaman denied. Nevertheless, Rinaman said, the court ruled that he’d given up his rights.

Most parents interviewed for this story said they were fearful of publicly drawing parallels between their international custody battles and that involving Elian, whose great-uncle argues that he should stay in a free, prosperous country. The battle is too politicized, they say.

But some say they, too, have been told their child must stay in a foreign land because it’s a superior place to rear a child. Although many countries do routinely return children taken from the United States, and the United States reciprocates, decisions are sometimes influenced by nationalism, xenophobia, religion or mere caprice:

* An Islamic court told one California parent that her child would be exposed to godlessness and immoral behavior here.

* A New York father said his ex-wife snatched his son and kept him out of the United States so long that he no longer speaks English. A German court, which allowed years to go by without visitation, then ruled that returning the boy to an English-speaking country would qualify for the exception the Hague Convention makes for “severe psychological stress.”

* A Bahamian court wrote that if an American mother were to gain custody of children kidnapped by their father, “with the best will in the world, it would not be possible for her to prevent the minors from becoming little Americans.” (The father later returned with the children, and a Florida court ruled that the Bahamas had no jurisdiction in the case because the children hadn’t lived there before being taken from the United States.)

The State Department is handling about 1,100 open cases for American parents seeking to recover their children--”the tip of a gigantic and growing iceberg,” said David Levy, president of the Children’s Rights Council.

The National Center for Missing and Exploited Children estimates that up to 10% of 165,000 parental-kidnapping cases annually involve one parent taking a child abroad.

Cuba is not a signatory to the Hague Convention. But while Cuba has no right to invoke the treaty, State Department officials said they try to abide unilaterally by two basic tenets: “a respect for the parent-child relationship” and a commitment to the idea that “custody matters should be decided in the place where the child habitually resides.”

It’s a two-way street: Since September 1995, the State Department has returned nearly 700 children to other nations.

In cases involving a non-signatory nation, U.S. courts rely on the Uniform Child Custody Jurisdiction Act (UCCJA), in effect in all states. Seeking to prevent parents from shopping for a favorable court decision, it says custody decisions must be made in the state or country where the child lived for the previous six months.

That’s what prevailed in the case of Walter Benda of Max Meadows, Va., whose Japanese wife disappeared with their two daughters and the family assets while the couple were living in Japan.

Benda said he came home one night in 1995 to find a note reading, “Dear Walter, please forgive me for leaving you this way.” Soon after, Benda said, he saw his father-in-law meeting with his bosses at the Japanese firm where Benda worked. That afternoon, Benda was fired, no reason given.

With his work visa revoked, he had to leave the country soon. Unemployed and broke, he moved in with his parents near Roanoke, Va. A U.S. federal grand jury indicted Benda’s wife on kidnapping charges, but Japan has no extradition treaty covering the crime.

Benda turned to Virginia courts to seek custody but was denied a hearing because the girls had been living in Japan for more than six months--a decision upheld by a Virginia appeals court.

“I will feel a slap in my face if Elian is not returned,” said Benda. “From my perspective, Elian’s mother, with her boyfriend, did just what my wife did--took the child without the father’s permission or knowledge. Keeping Elian here would set us all back a lot.”

Spencer Eig, lead attorney representing Elian and his great-uncle, said he couldn’t immediately answer why the custody jurisdiction law shouldn’t apply to Elian’s case.

“I’ll have to answer that with a paper in front of me,” he said, referring the question to another team member, Jose Garcia-Perdosa, who said it wasn’t within his “specialty” and referred it to yet another team member, who did not return a phone call.

Benda has despaired of winning custody and is concentrating on visitation rights. Despite numerous court battles--he went to Japan five times last year alone--he has seen his children only once since they were taken.

He had hired a detective to track them down, and stopped them as they left school. The younger girl, who didn’t remember him, was terrified. The older one screamed and resisted his embrace.

“I had that one time to try to show her I love her, and hold her in my arms,” he said of the few moments before the mother, and police, intervened.

That Benda’s children are U.S. citizens was of no help in Benda’s custody fight. So he can’t understand why attempts to make Elian a U.S. citizen--as several Republican lawmakers are trying to do--should affect whether the boy is returned to his Cuban father.

A parent’s rights are respected throughout the world. Even if the child’s best interests would be better served by going to another family, parents generally get preference.

That is clearly spelled out in Florida law, said Melvyn Frumkes, an international custody expert. He read from a state Supreme Court ruling that stated that if two fit parents each want a child, the test should be the child’s best interest.

“When the custody dispute is between a natural parent and a third party, however,” the ruling continues, “determination of custody must include consideration of the right of the natural parent to enjoy custody, fellowship and companionship of his offspring. This is a rule older than the common law itself.”