The Elián Drama 20 Years After: Miami Judge Remembers The 'Hardest Decision'

Nov 25, 2019

Twenty years ago this week, on Thanksgiving Day, a 5-year-old Cuban boy named Elián González was found floating on an inner tube in the Atlantic off Fort Lauderdale. His mother had taken him with her fleeing communist Cuba. She drowned. For the next seven months, Elián was the focus of a bizarre tug-of -war between his father in Cuba and his Cuban exile relatives in Miami – who wanted to keep Elián in the U.S.

Jennifer Bailey was a family court judge in Miami then. She helped end the drama by refusing the Miami relatives custody of Elián. Bailey is still a Miami-Dade circuit court judge – and she has recounted that stressful episode in a collection of essays titled “Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They've Ever Made.”

Bailey presented the book along with some of its other contributors last weekend at the Miami Book Fair. She spoke earlier with WLRN’s Tim Padgett from Washington, D.C., where she was attending a board meeting of the National Center for State Courts.

READ MORE: Recalling Elián: How Miami Demoralization Led to Cuba Normalization

Excerpts from their conversation:

WLRN: When Elián González was plucked out of the ocean, did you ever imagine it would involve you?

I did not. My first reaction was as a human and as a parent, as I think most people's reaction was. And so the better part of December was spent with all of us watching the INS try and sort through this.

Miami-Dade Circuit Court Judge Jennifer Bailey today.
Credit Courtesy Miami Book Fair

The INS was the immigration agency then known as the Immigration and Naturalization Service...

Yes, which was part of the Department of Justice, which was then supervised by the United States Attorney General, who was also a Miamian: Janet Reno. The INS goes to Cuba and determines that the child should be reunited with his father. And so no, I didn't really envision it would end up in what traditionally has been divorce court in Miami, where I was assigned.

The federal courts agreed. But Miami's Cuban community insisted Florida state family court had to make the final decision. That meant you. You recall reporters snooping through your garbage for notes that might indicate how you'd rule. Describe the awful pressures you were under.

I am a pretty good stress manager. It was a difficult case, and was a difficult case from the standpoint of an elected judge who really liked being a judge and wanted to keep her job.

It broke my heart for my town, for Miami. But I did what the law required. I did what was right. –Jennifer Bailey.

The town was split in tremendously angry ways in Miami. It was characterized as father-versus-freedom. And both those points of view were worthy of respect. And so the pressures that were more significant were the internal pressures that I put on myself to try to treat this case in a way that respected everyone's views – but at the same time followed the law, because we in the United States recognized the freedom and the right of parents to parent their children.

You write in your essay, “The Miami family was asking me to conclude Elián’s father was unfit essentially because he was living in communist Cuba.”

Right, but the facts of the case were that this child was well cared for and loved at his home in Cuba. And so the law did not in any way, shape or form favor the idea that the state court of Florida had the ability to simply ignore his father's rights.

POLICE ESCORT

When you issued the ruling – and when federal agents then raided the Miami family's home and took Elián back to his father – did you worry for your own safety here?

The court liaison police officers came to see me immediately after that ruling and said to me, “You have to leave the building.” And I was escorted to my minivan, and I drove down U.S. 1 with a police car on either side of me, a police car in front of me and a police car behind me. They remained outside my house for the next two weeks. That was one of the most surreal experiences of my life.

How did this episode change you as a judge and as a person?

It broke my heart, for my town. But at the same time, it gave me some personal comfort that at the moment I was called on to test whether I was going to put my own political interests ahead of what the law required, I did what was right.

Elián González is today  a 25-year-old engineer in Cuba.