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Dad regains his footing in legal fight over Elian; Right to boy affirmed; say on home bolstered


WASHINGTON -- One hundred and eight days after federal immigration officials decided that 6-year-old Elian Gonzalez "belongs with his father," they were brought together yesterday and, suddenly and dramatically, the legal part of this family saga changed.

Not only does the father, Juan Miguel Gonzalez, have the boy at his side, he also has regained the full legal right to keep him -- a parent's right that cannot be undone easily and probably will not be undone. And in a matter of weeks, Gonzalez might regain the right to decide whether the boy lives in the United States or goes back to live in Cuba, and may have the last word on whether Elian is to be given political asylum.

None of that is a certainty at this point, legal analysts said yesterday, but they added that those outcomes became more likely in the wake of the father-son reunion.

For a period, perhaps not a long one, the father will remain under orders not to take Elian to Cuba. But that could change as legal developments unfold as a consequence of that reunion.

The first legal change has occurred. When Gonzalez greeted Elian at Andrews Air Force Base yesterday morning, the Immigration and Naturalization Service formally put the boy back into his father's care.

That act ended most -- but maybe not all -- of the legal power the boy's great-uncle, Lazaro Gonzalez, has had over him since November, when INS temporarily granted the Miami relative care of the boy.

Yesterday's transfer put seven decades of family law precedents solidly behind Juan Miguel Gonzalez's claim to the boy -- precedents that confirm the right of a parent considered to be fit to control the upbringing of a child.

"The long-established principle," Florida custody law specialist Bernard P. Perlmutter of the University of Miami law school said yesterday, "is that the parents speak on behalf of children in all major life decisions -- where the child goes to school, what medicines the child takes, even what the child has for breakfast."

As a matter of coincidence, the Supreme Court could strengthen that principle in the next few weeks. It is getting ready to decide a case testing the right of parents to control who has visitation rights with their children --- a decision almost certain to say something about parents' rights to make key choices for their youngsters.

Ultimately, Perlmutter said, the principle of strong parental rights could control the remaining legal proceedings over Elian's future and determine where he is to grow up.

The legal proceedings could begin to take a different turn as early as tomorrow, when the father's Washington attorney, Gregory Craig, is expected to file the necessary papers to get the father officially involved in the legal dispute.

The 11th U.S. Circuit Court of Appeals based in Atlanta is weighing an appeal by Lazaro Gonzalez seeking a hearing on asylum for Elian; a U.S. District judge ruled against that request last month.

Last week, the appeals court ordered that Elian be kept in the United States until it decides whether to require a hearing.

Elian's father has not been involved directly in that case; the Justice Department has been arguing on his behalf that there should be no asylum proceeding because the father speaks for the child and has said he does not want asylum for his son.

The appeals court suggested last week that the Justice Department may have to question Elian directly, to see what he wants. But that was not a binding ruling; the court plans to call for more legal arguments and has scheduled a hearing for May 11.

The appeals court also indicated that Lazaro Gonzalez may be a proper representative for Elian legally. But the father's direct participation in the case may influence how the court deals with that issue.

Perlmutter, the Miami law professor, said the father's participation in the case would probably force the appeals court to confront an issue it has not decided: "Who speaks for a 6-year-old? Will it be the father or a distant relative?"

Juan Miguel Gonzalez has no guaranteed right to take part as that case proceeds. But Perlmutter and others suggested yesterday that it would be highly unlikely the appeals court would exclude him.

Should the appeals court allow him to join in, those analysts said, it might change the entire legal character of the case. One option open to the court would be to let the father, not the great-uncle, begin representing Elian's legal interests. And one possible outcome of that could be that the appeals court would allow the father to withdraw the asylum appeal, ending the case without a decision.

If the appeals court, contrary to the father's expressed wishes, decided to order the government to consider asylum for Elian, and if that withstood a government appeal to the U.S. Supreme Court, the case would shift to the Immigration and Naturalization Service.

But the INS would not be ordered to grant asylum, merely to consider it.

Georgetown law professor David D. Cole said that in an asylum case, the boy would have to prove that, if returned to Cuba, he would have "a well-founded fear of persecution" for his political or religious views.

There also would be expert witnesses to testify about that issue and the State Department probably would also be asked for its views, Cole said.

With a 6-year-old on the stand, the professor said, "the whole thing would be surreal. What political views would the boy say he had? And, what is the likelihood of him being persecuted [in Cuba]? He and his father would be national heroes in Cuba."

The professor also noted that the issue of custody of Elian -- that is, who will raise him -- would not be an issue in the asylum proceeding because that would be confined to the fear of persecution in Cuba.

Although it would be most unlikely that INS would grant Elian asylum, the outside possibility that it might do so would raise the difficult legal question of what is to happen to him.

A ruling granting him asylum might end the case for the INS, but it would not fully resolve where the boy is to live. That is an issue closely related to who has custody of him.

The court that most likely would consider custody of Elian -- the Miami Circuit Court, a state tribunal -- has ruled that it has no jurisdiction to hear any custody issue as long as Elian's status is under INS control.

Dismissing the great-uncle's request for temporary custody of Elian under Florida law, the judge said this month, "This is an immigration case, not a family case."

But, should INS do the unexpected and grant asylum, it might be possible to reopen a custody case before the state court.

Still, since the great-uncle lost the right to care for the boy with the transfer of Elian to his father, it is doubtful that the Miami relatives could succeed with a claim for shifting custody of him back to the great-uncle.

Under Florida law, they would have to prove the father was not a fit parent. The Miami relatives have made such a claim in recent days, but that marked a shift from their previously expressed public view of him as a loving father.

It is unclear what evidence the relatives might have to back the new claim of unfitness.

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