Every Child

Has Two Parents

 
 

Anxious Eyes on Elian Case


Parents in International Custody Battles Fear Impact

 

By Cindy Loose. Washington Post Staff Writer. Thursday, February 3, 2000; Page A01

When they weren't busy doting on their baby, Jim Rinaman and his wife worked on renovating their spacious home on Capitol Hill. Soon he would leave the Army to start a law practice, and he saw nothing but happiness and success 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 raising a child. The schools weren't as good as in Germany. The streets were dirty. Too much crime. Homeless people in the park. Too many blacks.

Finally, it was time for her to go back to Germany. But Rinaman returned that afternoon after work in 1996 shocked to find that his mother-in-law was not the only one gone. So too were his wife and 15-month-old daughter, Julia. He has not seen his little girl, who will turn 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. Meanwhile, thousands of American parents are fighting to have their children returned from abroad. The Gonzalez case makes many of them uneasy.

If Elian remains in the United States, they fear, it will make it even harder to retrieve their children from other countries. State Department officials who intervene on behalf of U.S. parents agree. "Other countries will examine how we handle this case," a senior State Department official said in a briefing last week.

Rinaman's case for custody of his daughter 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. Julia resided in the District, and a District court awarded Jim Rinaman custody.

But according to Rinaman, a German appeals court decided to ignore the Hague Convention on the basis of lies told by his mother-in-law. She had testified that she'd once overheard Rinaman saying his wife could have the child--an assertion Rinaman hotly denied. But on the basis of that hearsay, the court ruled that Rinaman had given up his rights, he said.

Most of the 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 is arguing that he should stay in a free and prosperous country. The battle is too politicized, they say.

But some added that they too have been told that their son or daughter must stay in a foreign land because it is a superior place to raise a child. Although many countries do routinely return children taken from America, and the U.S. reciprocates, sometimes decisions are influenced by nationalism, xenophobia, religion or mere caprice.

One California parent was told by an Islamic court that her child would be exposed to godlessness and immoral behavior if he were raised in the United States.

A New York father said his ex-wife snatched his son from the United States and kept him out of the country so long that he no longer speaks English. A German court, which had 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, in one case, 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." In this case, however, the father returned to the United States with the children and the mother successfully challenged the decision. A Florida court ruled that the Bahamas had no jurisdiction because the children had not lived there before removal from the United States.

The State Department is handling about 1,100 open cases for American parents seeking to recover their children. Those represent what David Levy, president of the Children's Rights Council, called "the tip of a gigantic and growing iceberg."

The National Center for Missing and Exploited Children estimates that as many as 10 percent of 165,000 parental kidnapping cases a year 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 attempt 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. The State Department has returned nearly 700 children to other nations for custody decisions since September 1995.

In cases in which a non-signatory foreign country is involved, 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 stipulates that 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.

According to Benda, he came home one night in 1995 to find a note reading, "Dear Walter, please forgive me for leaving you this way." Not long 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 after. Unemployed and broke, he moved in with his parents near Roanoke. A U.S. federal grand jury indicted Benda's wife on kidnapping charges, but Japan does not have an extradition treaty covering the crime.

Meanwhile, Benda turned to Virginia courts to ask for custody of the two girls, Ema and Mari. He was denied a hearing because the girls had been living in Japan for more than six months. A Virginia appeals court upheld that decision.

"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, the lead attorney on the team of lawyers 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, and referred the question to another team member, Jose Garcia-Perdosa, who said it was not within his "specialty" and referred it to yet another team member, who did not return a phone call.

Meanwhile, 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.

That one time, he hired a detective to track them down, and stopped them as they left school. The younger girl didn't remember him and was terrified. The older one screamed and resisted his embrace. Yet he treasures those few moments before the mother, and police, intervened.

"I had that one time to try to show her I love her, and hold her in my arms," he said.

The fact that Benda's children are U.S. citizens was of no help to him in his custody fight. Therefore, he cannot understand why attempts to make Elian a U.S. citizen--as several Republican members of Congress are attempting to do--should affect whether the boy is returned to his Cuban father.

Other American parents too have discovered that jurisdiction, not citizenship, is the deciding factor.

Veronica and Nathan Sampson, for example, both U.S. citizens, moved to Israel to live as part of a religious sect, the Black Hebrew Israelite Nation. Years later, the mother returned to the United States with the children. A Kansas judge last spring ordered them returned to Israel for a custody hearing.

The mother then moved to Missouri without informing the court, said Judge Daniel A. Duncan. She has been ordered back for an upcoming hearing.

Jacqueline Walsh of Boston left the United States with her two U.S.-born children when her Irish-born husband wanted to escape assault charges in Massachusetts. Years later, claiming her husband was abusive, she returned to the United States seeking custody.

The judge said he was convinced that John Walsh was "intemperate and often unkind to his children" but added that an exception to "habitual residence" would require a grave risk of physical harm. Slapping, he said, didn't meet that test.

Battles over children, of course, usually involve two parents. In the international arena, experts could think of only one case that did not involve two parents--and the case is considered a notorious example of gross injustice.

Joseph Cooke of New York agreed in 1992 that his wife, who was depressed, could take their two children to Germany to visit her family. He hoped it might cheer her up.

Instead, she checked into a mental institution and put Danny and Michelle Cooke into foster care. She then moved back to the United States by herself.

It took Cooke a year to find out what had happened to his children. He lost his business and went bankrupt while he devoted himself to fighting for their return--but to no avail.

"If you haven't been through this, people wonder what you did" to lose your children, said the children's grandmother, Patricia Cooke. "But you did nothing. It's what the government of Germany did, and it's what the U.S. didn't do. Joseph went to Congress, to the State Department, and nothing happened."

(The German Embassy is not familiar with either the Cooke or the Rinaman case, a spokesman said. Individual German courts handle custody matters, he said, adding, "German courts are reluctant to provide anything for the media.")

Cooke's case is so rare because a parent's rights are respected throughout the world. Even if the best interests of the child 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 in Miami. He read from a state Supreme Court ruling that stated that if two fit parents each want a child, the test should be the best interest of the child.

"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."

"You can't just reallocate kids from a parent to someone you think would make a better home," said John Crouch, a family law expert in Arlington. "I've heard Elian's father referred to as the biological father, a term we first used for sperm donors, or men who'd given up their kids for adoption. If every parent seeking custody is considered little more than a sperm donor, that's scary."

That is what the German court seems to consider Jim Rinaman--although it has ordered him to pay child support, which he does. He has exhausted his appeals for custody but continues to fight for visitation.

Last spring, Rinaman spent two weeks in a park near the Bonn address where his wife claims to live. She moved there--or claims she did--to thwart a visitation order from a court in Dusseldorf. Germany has no law to stop parents from court-shopping, and Julia's mother argued that because she had moved, the Dusseldorf court no longer had jurisdiction.

As he sat in the park watching, Rinaman felt conflicting desires. If he didn't see Julia, it would help him prove she still lived in Dusseldorf. Yet he yearned to catch a glimpse of his child. He didn't.

In November, during yet another trip to Germany, Rinaman again sought visitation. His now ex-wife argued that the reappearance of Julia's father would psychologically damage the child, because Julia believes her mother's boyfriend is her father.

The court disagreed and said Rinaman could see Julia either this month or next month, but it did not set a date.

"I'm afraid that, as usual," Rinaman said, "I'll go over there to see her, and for some reason or another, it just won't happen."

© Copyright 2000 The Washington Post Company

The information on this website concerns a matter of public interest, and is provided for educational and informational purposes only in order to raise public awareness of issues concerning left-behind parents. Unless otherwise indicated, the writers and translators of this website are not lawyers nor professional translators, so be sure to confirm anything important with your own lawyer.




Copyright © 2003-2009                                                                Contact us





 

Please bear with us while we reconstruct CRN Japan.  You may find links that are broken and data that is not in it’s place.  Please understand we are working to fix all issues.  Thank you for your understanding.

   Search CRN Japan