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Stanford Law Professor Michael Wald discusses the legal rights of a 6-year-old

May 10, 2000
Web posted at: 3:09 p.m. EDT (1909 GMT)

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(CNN) -- Stanford University Law Professor Michael Wald joined CNN.com for a chat to discuss whether or not a 6-year-old child has a legal right to speak for himself in light of the Elian Gonzalez case. The chat was presented on Wednesday, May 3, by FindLaw.com. CNN provided a typist for Wald. The following is an edited transcript of the chat:

Chat Moderator: Professor Wald, have there been cases similar to the Elian Gonzáles case, and if so, what were the outcomes?

Michael Wald: A similar case in the 1980s involved a 12- or 13-year-old boy from the Soviet Union who was in Chicago with his parents. His name was Walter Povlochak. The boy asked to stay with relatives in the United States rather than return to the Soviet Union. The case was handled in the Illinois courts which, I believe, decided that his parents had the right to custody. I don't remember the ultimate outcome; it may have been that he stayed in the United States. That was contested for a while in the courts and he was an older teen by the time it was resolved, unlike the situation of a 6-year-old.

Question from josephpie: Who will be with Elian in court?

Michael Wald: It's not clear that Elian will actually be in court. There will be arguments before the judges, at which time it will be decided whether Elian should be interviewed. I would assume that if he's in court, he would be there with his father.

Question from triibe: If the court rules Elian can petition for asylum, are all parents at risk of having their rights taken away?

Michael Wald: The simple answer is no. This is an unusual case involving political asylum. Let's suppose this case arose in the United States and that Elian's mother had been a U.S. citizen, divorced from Elian's father, and they all lived in Florida. The mother took Elian to California, was killed in an automobile accident, and relatives in California said the child should not be returned to the father in Florida. Under U.S law, unless the father were found to be unfit, to have abused the child, the child automatically would be returned to the father. That's also true with respect to children in custody disputes coming from other countries, most of whom we have treaties with to return children in circumstances like this. We do not have treaties with Cuba. This case arises as a political asylum case and there is a question, which the court will decide, of whether the 6-year-old minor can ask for asylum against the parent's wish. The decision in this case would not have applicability to non-asylum cases -- custody cases -- that come up in the United States.

Question from triibe: I'm confused. A child/minor cannot sign a legal contract so how can apply for a petition?

Michael Wald: What the 11th Circuit Court of Appeals indicated is that under the asylum law in the United States, any person in the territory of the United States may apply for asylum. Because the statute did not exclude children from applying, the court said children may have an independent right to request asylum. It's the position of the INS that young children can only apply through their parents. That's the issue that the court will resolve in the May 11 hearing.

Question from mom: At what age do you feel a child should be able to make decisions for himself? Parents around the United States realize that asking a 6 year-old is ridiculous, but at what age do you feel a child legally should be able to decide for himself?

Michael Wald: I don't think that there is a single answer to that. I think it depends on the type of decision and the context of the dispute. For example, in most states, the views of children over 12 who are involved in a custody dispute are given great weight by the court as to which parent they would choose to live with. It seems to me to be sensible to give older children a substantial say in that decision, because they're capable cognitively and emotionally of understanding what's at stake. If they are placed where they don't want to be, they often disrupt that placement. It seems to me that in that type of decision, you might give children 12, 13 or older, but not younger than that, the right to decide which parent to live with in a custody dispute. On the other hand, you would not give a 12 year-old the right to drop out of school, or to decide against against their parents' wishes what time their curfew should be, or even to move into a neighbor's house, although you might give them the right to choose between parents in a custody context. Similarly, with teenagers, many states give them a right to get medical care for drug or alcohol problems without parental permission, fearing that if they are not given such a right, they will not seek out the treatment. This does not mean that every teenager is thought to be mature in terms of such decisions; rather, it reflects the judgment, with which I agree, that the consequence of not letting the teenager seek out the treatment is worse than allowing a decision without parental involvement. There are other kinds of decisions that will depend both on the age of the child and the nature of the decision, what's involved in the decision.

Question from Angolmois: If you were an advisor to the Miami relatives, what sort of legal maneuver would you suggest to them to keep Elian in the U.S.?

Michael Wald: I would advise them that it was not in Elian's best interest to prolong legal proceedings, that it creates uncertainty for the child, loyalty conflicts which are very damaging emotionally, and that many children who have been asked in custody disputes where they want to live, particularly young children, later come to regret having said anything, because they feel they have rejected a parent. This is something that a 6 year-old cannot comprehend, how he or she will feel as he or she gets older, having made a decision to reject a parent. I would not put a young child in that position at all if I were concerned with that child's interests.

Question from josephpie: What if the lawyers for Elian's Miami family use the argument that living in Cuba would be detrimental to the child?

Michael Wald: The legal issue is not whether Cuba would be detrimental to the child. The legal issue is whether Elian has a reasonable basis for fearing that he will be subject to persecution based on race, gender, or several other factors that are in the INS code. It is not an issue of which country is better to grow up in, just as it would not be, in the United States, a relevant question of whether it was better to grow up in Florida or California.

Question from tekwiz: Doesn't a case like this have the potential to open the U.S. as an asylum for runaway children? Shouldn't we apply our own laws to a case like this?

Michael Wald: We have to apply asylum law. I would apply asylum law similarly to our own law which says that we return runaway children. It would seem to me that, yes, if the court were to decide that young children could ask for asylum independent of their parents, it would open up a situation where children and parents from other countries -- China, the Middle East, places where some judge might think is not a good place to grow up -- could be brought here and asylum sought. I think that would be a bad precedent.

Question from zerodelta: What, if any, legal representation will be made by the Cuban government?

Michael Wald: The Cuban government has no legal standing in this case.

Question from Big_Daddy_Liberal: Do you agree that all of this is just hot air? The resolution of this case is plainly obvious: father and 6 year-old go back home.

Michael Wald: I don't think it's plainly obvious. The court of appeals, at least in its ruling on the preliminary injunction, indicated that it believed Elian might have an independent right to ask for asylum. I think that ultimately the court will decide that the father speaks for the child and they will return to Cuba, but I don't think that's a foregone conclusion.

Question from darko: Why there are no investigations into whether or not the Lázaro Gonzáles family coerced little Elian into signing something he did not fully understand? It is clear that Elian does not understand written Spanish, let alone English.

Michael Wald: I do not know whether the circumstances under which he signed the asylum application will be investigated. It's possible that if the court decides Elian needs to be interviewed by the INS, the INS will look into the circumstances under which he signed the asylum petition. One of the great dangers of custody cases is that children will be put under a lot of pressure to say one thing or another. That is why it's best to avoid putting children in these kinds of circumstances.

Question from DawnL: What real legal rights does a 6 year-old child have outside of the decisions his parents make for him?

Michael Wald: As a general rule, none, except in cases where the parent has abused or neglected the child. In those cases, state agencies may intervene to protect the child, possibly to place the child in foster care. As long as parents are adequately caring for their young children, young children do not have rights independent of the parent.

Question from triibe: The question about whether living in Cuba would be detrimental to Elian brings up a another question: Can the 11th Circuit rule that the circus atmosphere initiated by the Miami family was detrimental to Elian and should be a basis to deny him his petition?

Michael Wald: I'm not an expert on asylum law. My background is in child custody and child welfare law. But I believe that both the situation of what life would be like for Elian in the United States or in Cuba is not the relevant issue. The only question is whether he will be subject to persecution if returned to Cuba. We do not grant asylum because adults or children think they would have a better life in the United States than in whatever country they come from.

Question from josephpie: Has the federal government's role in this been overplayed?

Michael Wald: The federal government had to be involved because once Elian was within United States, the INS became legal custodian of the child and had to make decisions as to where the child should live and whether the child was entitled to seek asylum. The federal government had no choice but to be involved to the degree that it has been.

Question from Big_Daddy_Liberal: If the court determines Elian is entitled to an asylum hearing, who hears the case?

Michael Wald: Again, I'm not an expert on asylum law, but I believe it is an INS asylum hearing officer.

Question from denise: What legal standing would a great-uncle and cousin have in a custody case to begin with?

Michael Wald: Generally, none.

Chat Moderator: Do you have any final thoughts for us today, Professor Wald?

Michael Wald: I think this case ought to be seen as a child custody case and that U.S. law strongly holds that where a parent who is not unfit, who has not abused or neglected the child, is seeking custody of a child who is in the care of some other parties, the child will be returned to the parent. That rule is not based on notions of parental rights, but on the judgment that it's bad for children to be caught in custody disputes. Custody disputes create uncertainty for children. They drag on for a long time in the courts. They may create loyalty conflicts for the child, and children 10 or under really don't have the capacity to make a judgment as to where they would like to live and what that entails. So, we protect children from that judgment. I believe that's the way we ought to resolve this case as well. There might be some situations where a child has been persecuted in another country because of gender, race or religion. If that persecution can be documented, we might well grant that child asylum. Absent real evidence of harm to a child, it's best if the legal system does not get involved in these cases and lets the parents decide where the child will live.