What Can a Kid Decide?

By Richard Lacayo

The story of Elian Gonzalez will leave in its wake not just bitter excitement but also one of the more hard-to-figure court decisions of recent years. In a federal appeals panel ruling last week that no one could remove Elian from the U.S. before a May 11 hearing in the same court, the judges appeared to portend a new issue, seeming to claim an unexpected new right for six-year-olds to press their cases.

Throughout the Elian drama, the Immigration and Naturalization Service has held that only the boy's father has the legal right to speak for him and that a boy his age cannot be expected to comprehend the meaning of an asylum request. But in a unanimous ruling, the three judges of the Atlanta-based 11th Circuit went out of their way to criticize the INS for not taking into consideration Elian's stated wish to stay in the U.S. The judges noted that when Congress wrote the 1980 immigration law, it specified that "any alien...may apply for asylum." Since Congress did not specifically exclude children from that category, the judges said, even a small boy could press for asylum. As evidence of Elian's feelings in the matter, the court noted that he had scribbled his signature at the bottom of the application.

Is it only a short step from here to a world in which first-graders sue parents for sending them to bed after dinner? Probably not, if only because the court's ruling is so entirely outside the general trend of law in this area. The ruling is "out of whack," says professor Martin Guggenheim, who specializes in children's law at New York University. "A child can't go to the dentist without permission, can't have any kind of emergency surgery, can't choose school, religion, clothing, housing. If you took this ruling to its logical extension, a child would have the right to go to court and say, 'I'm a New Yorker, but I want to move to California.'"

In a number of recent cases, courts have looked at the extent to which older children can assert constitutional rights of free expression or privacy against schools. Usually the judges have found for the grownups. The Supreme Court has said it is O.K. for principals to censor student newspapers and for schools to test athletes for drugs without specific reasons for suspicion. And outside this peculiar case, the issue of whether children can assert legal claims against their parents or bring claims that their parents oppose is fairly clear cut: they can't. Many people remember the famous case of "Gregory K.," a 12-year-old who sued to "divorce" his parents in 1992 so that he could stay with the foster parents he loved. Not as many remember that although a Florida appeals court allowed Gregory to remain with his foster parents--it ruled that his natural mother had abandoned him--the same court refused his argument that he had any right to sue his biological parents in the first place.

So long as no court has found them unfit, only parents--not grand-uncles, cousins or sympathetic strangers--can make decisions on behalf of children, though a child can sometimes initiate the agency investigation that would determine a parent's fitness. The major exception in this area is the right of teenage girls in some states to get an abortion without parental consent. That also happens to be one of the most hotly contested areas of abortion rights, which is why 39 states have passed laws that require a girl to notify or get permission from a parent.

When parents disagree, as they do in custody disputes, on what should happen with their children, courts have the option of asking what the kids would prefer. But even in those instances, it would be out of the ordinary, to say nothing of an interesting exercise in child psychology, to inquire into the mind of a boy as young as Elian. "U.S. courts in custody disputes have heard 12-year-olds on where they wanted to live," says David Levy, president of the Children's Rights Council, based in Washington. "But usually they won't ask the child before 14. The law is not meant for six-year-olds."

An earlier case that bears some resemblance to Elian's involved Walter Polovchak, who moved with his family from the Soviet Ukraine to Chicago in 1980. A year later, his parents decided to move back. The boy, then 12, petitioned to be allowed to remain, and a court battle dragged on for years. It became moot when Polovchak--who had stayed in the U.S. with his elder sister while his case chugged forward--turned 18 and successfully applied for U.S. citizenship. With Elian back with his father, his case is unlikely to drag on that long. But this saga of surprises still has court dates--enough time for more drama.

--Reported by Harriet Barovick/ New York and Mark Thompson/Washington

With reporting by Harriet Barovick/ New York and Mark Thompson/Washington