The case reads Elian Gonzalez v. Janet Reno on the federal docket. On one side, Reno and several lawyers from the U.S. Department of Justice and the Immigration and Naturalization Service, who have ruled that the 6-year-old boy who survived a shipwreck and the trauma of seeing his mother drown should be reunited with his father in Cuba. On the other, three lawyers representing Elain's Miami relatives, who are fighting for custody of the child and would like to see Elian granted U.S. citizenship.

But although the case bears his name and he is the person with the most at stake, Elian, like the vast majority of children caught up in custody disputes, has no inherent right to attorney to represent his interests. And making him a U.S. citizen would not change that.

Children and the Courts
If "innocent until proven guilty" are the four most important words in our legal system, "legal standing" might be numbers five and six. In order to bring a matter before the court, a person must have legal standing. And in most states, children are considered legally incompetent until at least their late adolescence. They are not guaranteed the right to an attorney, nor can they ask the court to appoint them a lawyer or representative, often called a guardian ad litum, responsible for conveying their best interests to the court.

Because the U.S. Supreme Court has not mandated that children have the right to independent representation, each state is free to set its own law. Some states—but not all—allow a child independent counsel if the judge or one of the parties involved (usually mom or dad) requests it.

Many advocates believe that even in relatively simple custody matters, children would benefit if they had someone speaking just for them. Children's needs or concerns may be overshadowed when custody cases pit one adult against another. "Often, the court is dealing with constraints and parents who may be well-intended but get caught up in heat of battle and there really isn't someone coming to the forefront saying, 'Let's take a time out here and see what's going on with these kids and what do we have to do for them,'" says Nannette Bowler, director of Michigan State University's Chance at Childhood program that integrates graduate law and social work courses.

"One of most important things when there is a custody conflict is that the child have some truly independent representation, not arranged by either party," says Howard Davidson, director of the American Bar Association's Center on Children and the Law. "It happens relatively infrequently because few laws require it."

When abuse or neglect is alleged, and the state has stepped in against the "unfit" parent, most states guarantee the child the right to independent representation. But in conflicts between parents or relatives where neither is deemed unfit—and the court must decide what's best for the child—it's discretionary.

David L. Levy, who directs the conservative Children's Rights Council, believes strongly in parents' ability to serve the interests of their children. Says Levy, "You want to get more lawyers in the picture? You want lawyers to take over the whole country? In some cases, guardians are necessary, but in most cases we need to have fewer, not more, custody cases and fewer, not more, lawyers. Children's primary legal right is to have two parents in their lives."

According to Nannette Bowler, it may not always be as simple as leaving it up to the parents to represent the child. "We need to be careful not to present this as pitting children's rights against parents' rights," she says. "It's a matter of access to justice, whether you're an adult or child. If as a child you are made a part of a process by no volition of your own, you should have equal access to justice."

Appointing a representative for a child is an expensive undertaking. And judges sometimes fear that it will complicate the litigation to have three parties involved. Don DuQuette, clinical professor of law and director of the Child Advocacy Law Clinic at the University of Michigan Law School, disagrees. "I've represented children a fair amount in custody cases, and found that it actually simplifies things because a good child advocate is going to reach for harmonious resolution and not complicate the judge's decisions."

Defining a Child's Best Interest
The term "best interest of the child" is a familiar term, found everywhere from the evening news to the pages of legal best sellers. But what does it really mean?

A cornerstone of most states' child custody and placement laws, the term often resists definition. Says Don DuQuette, "There's long been dissatisfaction with the phrase among lawyers and judges. It sounds so good, but it's indeterminate and imprecise. It's like telling the judge to go out there and 'do justice.' How is she supposed to be guided by that? If you're a Cuban living in Miami, you know how you're going to come down on the issue of what's best."

Some states, like Michigan, ask judges to follow a specific procedure when determining the best interests of a child in a custody case. The judge rules on 12 factors, ranging from concrete concerns like length of time the child has lived with either party involved and whether the child was victim of or witness to domestic violence, to more nebulous ones like the love and ties between the child and the parties involved or the moral fitness of each party. Other states have presumptions in favor of the parent with most responsibility for and history of care giving.

In the Gonzalez case, the INS ruled that only Elian's father Juan Gonzalez can legally speak for Elian's best interests. Elian's great-uncle Lazaro Gonzalez and cousin Marisleysis Gonzalez filed the federal case to challenge this ruling, arguing that they represent the child's best interests, namely his right to remain in the United States.

Training to Fight For Children
Not all lawyers are created equal, when it comes to their ability to do a good job representing children.

Several state and national studies have found that lawyers working on behalf of children in the court system should receive special training. In addition to legal expertise, these lawyers benefit from learning about such non-legal matters as children's emotional and mental development, and what we know about attachment and bonding. And they need training in interviewing children and measuring their responses.

"We need to consider what we do to train lawyers, and whether you make it possible for them to surround themselves with experts, from social workers to medical personnel, so the recommendations come not only from a legal standpoint but also from a services to the child perspective," says Nannette Bowler.

This is something even those who oppose legal representation for children in custody disputes emphasize. "We have a real need for mediation and parenting education on what children need, how they develop, why they need moms and dads," says David Levy. "We need to work on getting grandparents involved, the importance of spending time with kids, and what it means to kids when parents argue."

Because custody cases carry serious consequences for the children involved, and are often traumatic, it takes more than just good law, and good lawyers. "The legal system has to get better at making this a multi-disciplinary decision," says Bowler. "It often takes more than just strictly legal information to analyze these cases. Slowly, I think, we're moving towards training social workers and lawyers together at the university level, and pulling in medical experts and psychologists to get every one together to share information so we're not operating myopically or in isolation."

When Love is Not Enough
Children need love, nurturing parents, concerned teachers, and encouragement to explore and grow into the world around them. They may also need an independent advocate looking out for them when custody disputes arise.

"A lot of work needs to be done to look at how we deal with children who are the subjects of very emotional, heated and contentious custody conflicts," says Howard Davidson. "The trauma children face in protracted custody battles is extreme, and independent representation is particularly critical. We just need the political will for that to happen."

The ABA Center on Children and the Law [1] has information on children's legal rights and ways you can get involved.

For more information on the Children's Rights Council, visit their Web site [2].

Connect for Kids' State Pages [3] can link you to your state legislature and give you more information about children and the courts in your state.