Who should have legal custody of Elián Gonzales?

Elián Gonzales, a 6-year-old Cuban boy was found Thanksgiving Day clinging to an inner tube off the coast of Miami, after his mother, along with nine other people drowned while fleeing Communist Cuba by boat.

Thanks to INS policy the death of Elián's mother may be in vain. Elián is about to be deported back to Cuba on January 14, 2000 if the United States Immigration and Naturalization Service (INS) have its way.

The present debate involves issues of fact, law, and politics -- it is the politics of a dictatorship that affects the decision of rightful custody of this child.

Should the boy be returned to the slave state of Cuba as his father Juan Miguel Gonzalez, supposedly demands, or should Elián be permitted to remain in the United States, and live with his paternal relatives.

In fairness to the father, given the lack of free speech in Cuba, we cannot know what the father's real position is. We cannot know that the father is not being coerced by the thugs in the Castro regime to call for the boy's return -- under penalty of imprisonment and separation from his new wife and three month old baby.

Suppose if the father actually wanted to his son to live in Communist Cuba, does the father have a right to force his son to live with him in Cuba?

Parents do not own their children; they are guardians of them. Guardians are individuals who make decisions for a child, in the child's best interest, until the child is old enough to make decisions for himself. Elián's father has no right to place his child in a dictatorship where individual rights do not exist. Such a claim is tantamount to sending a Jewish child in the 1940s back to a Nazi Germany to be "reunited" with his father.

To force Elián to live in an oppressive dictatorship is a violation of Elián's right to life. This is the claim Elián's father is making. It is a claim that labels the father unfit to have custody of his child.

What about the father's rights? Keeping Elián in the U.S does not violate his father's rights. Castro is violating the rights of Juan Miguel Gonzalez by physically preventing him and his family from leaving Cuba. The Cuban dictator is violating the father's rights by threatening to imprison Elián's father if he commits the political 'crime' of disagreeing with the state. If Castro's supporters were truly concerned with the rights they would call for Castro to open his borders to let the father travel to the U.S. to take custody of Elián -- with no strings attached, and no family hostages kept in Cuba.

Those who decry this as "cold war" propaganda are guilty of playing politics as they seek to whitewash communism, by having the indecency to suggest that life is as good as -- or better -- in Communist Cuba, than it is in the semi-Capitalist United States.

If there is no difference between Cuba and the United States, why does Cuba have use force to keep people in, and why does the United States use force to keep people out?

Why does Cuba jail people for political 'crimes' such as disagreeing with the government?

Why are there no elections where Castro is not already declared the winner before the election is even announced?

Why does your vocal disagreement with the government land you five years in a food impoverished prison cell?

The only proper interest in this case is that of young Elián Gonzales. What is in Elián's best interest: Life in America or life in a tropical prison camp? The answer should be obvious.

It was obvious to Elián's mother. Elián's mother died trying to escape Cuba with her son. Elián's mother found freedom worth the risk of dying for -- and unfortunately she did die, thanks to the Castro regime.

It is Elián's right to his life -- a right that does not exist legally in Cuba -- that determines that his relatives in Florida should have legal custody of Elián awarded to them. Contrary to those who clamor for the father's "rights" it is Elián's right to his life that comes first.

Mr. Da Cunha writes for Capitalism Magazine.