When can a child make big decisions?

Posted: Thursday, April 27, 2000

Put aside the dueling photos of the same boy terrified at being taken from his great-uncle's home and delighted to be in his father's arms.

Put aside the hysteria of a delusional cousin Marisleysis, now imagining herself the boy's mother, saying that the attorney general has no idea what it's like to be a mom.

Put aside, if you can, even the partisan politicians for whom the boy is a pawn on a political planet.

This case moves now to a cooler climate. The next stop is the U.S. Court of Appeals in Atlanta where the judges are slated on May 11 to hear the matter of Elian as alien.

The spotlight moves to the signature scrawled by a 6-year-old at the bottom of an INS application. It moves onto the child's right to claim asylum against the wishes of his parent.

Little more than a week ago, the appeals court ruled that under the law ``any alien . . . irrespective of such alien's status may apply for asylum.'' The boy they call the plaintiff may be only 6, but in the words of the court, he ``appears to come within the meaning of `any alien.' ''

``Not only does it appear that plaintiff might be entitled to apply personally for asylum,'' they continued, ``it appears that he did so.''

The judges didn't say whether he will be granted asylum, only that he can apply for it. Or allow others to apply on his behalf. And so, the signature he just learned to write qualified this first grader for his day in court.

This case takes us beyond the shark-infested zone of Cuban-American politics and into the murky area of children's rights. Just when are children capable of determining their own future? Just when and how do they acquire which rights of adulthood? When do their own rights supersede parents' rights?

We are, quite frankly, all over the legal landscape in granting children's rights. We approach cases one by one and often as inconsistently as imaginable.

In domestic custody cases, judges don't allow 6-year-olds to choose sides. It's only around 12 that they begin to have some say.

Beyond that we have enough turning points of adulthood to make adolescence dizzying. We don't allow 12-year-olds to leave home or 13-year-olds to quit school or 14-year-olds to hold full-time jobs. A 16-year-old may be carded from a movie or a cigarette, but a 17-year-old can enlist in the Army. An 18-year-old has the right to vote, but cannot drink.

We grant children the right to schooling, whatever their parents' views, and the right to emergency health care whatever their parents' religion. We wrestle over whether a girl old enough to get pregnant without her parents' knowledge is too young to have an abortion without their knowledge.

And of course, we increasingly ``emancipate'' children to be tried as adults in criminal cases. As Franklin Zimring of Boalt Hall Law School says, ``We engage in magical thinking. We decide that everyone who commits a serious crime is not a child because they committed a serious crime.'' If you are old enough to do the crime, we say, you're old enough to do the time.

No state, says Stanford's Michael Wald, ``has ever said we are going to establish a blue-ribbon commission that looks at how we treat minors for various purposes and come up with some general rule that reflects the same judgment about maturity or capacity.'' Nor for that matter has any court.

Now this court defines Elian as ``any alien.'' But we only grant asylum to people who justifiably fear being persecuted for their political or religious views if they go home. How many of us believe a 6-year-old can even form such political views? How many believe that this 6-year-old understood the papers he signed? Isn't it equally possible that he would sign a second set now that he is with his father?

The government argues in its brief that ``someone else filled out those applications. . . . The case is not about whether Elian has spoken about asylum. It is about which of two adults will be allowed to speak about asylum for him.'' One adult is a father, the other a distant relative.

The larger truth is that we can protect children by giving them rights. But we can also endanger them.

I can imagine a case in which a child should be protected from returning to, say, a Nazi Germany or Pol Pot Cambodia. But short of that extreme circumstance, granting a young child asylum against the wishes of his parent is destructive to both this boy and all those locked in international custody disputes.

Only magical thinking, only science fiction can transform a 6-year-old into an emancipated seeker of asylum with a fully honed political sensibility. In real life, this child is as unformed as the double images in the dueling photographs. He should not be treated as ``any alien'' but rather, as a son.

Ellen Goodman is a columnist for the Boston Globe. Her e-mail address is ellengoodman@globe.com.



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