updated 8/26/2007 11:17:08 AM ET 2007-08-26T15:17:08

A Cuban father allows his young daughter to emigrate legally to the United States with her mother, hoping they will find a better life. But months later, when the mother becomes incapable of caring for the girl, he seeks to bring the child home.

It would seem a simple case, but nothing is simple in Miami when it comes to Cuba and child custody.

Nearly eight years after the battle over young Elian Gonzalez divided this city, another Cuban child has become the center of a bitter custody fight. A trial is set to begin Monday in family court over whether the 4-year-old girl's father can regain custody of his daughter or whether she should remain with the wealthy Cuban-American former sports agent and his wife who want to adopt her.

Unlike the Elian case, so far this custody battle has moved quietly — albeit slowly — through family court. That could change. On Thursday, Miami-Dade Circuit Judge Jerri B. Cohen lifted a gag order on the parties — propelling the case into the public, and possibly political, arena. The sides are keeping the girl's name secret.

Allowing the parties to speak to the media could "inflame the community," Cohen told the girl's foster father, Joe Cubas, 46. Cubas has represented the New York Mets' Orlando "El Duque" Hernandez and several other defecting Cuban ball players.

Initially, he supported the gag order but later asked it be lifted because he said he was getting too many questions about the case.

"It's going to explode," the judge warned. "I know that as sure as I sit here. I can't prevent that."

Still, community leaders, many of whom fought hard to keep Elian from returning to Cuba, say they do not believe this case will spark similar tensions. The facts are different this time around, and neither the U.S. government nor the Cuban-exile community, burned by its negative portrayal during the Elian case, have a desire to repeat the past.

More amicable than Elian's case
Elian, then 5, was found floating at sea on an inner tube on Thanksgiving Day 1999, his mother drowning with others during her attempt to bring him to the U.S. His father did not come to Miami until immigration officials ruled that the boy should return to Cuba, over the objections of his Miami relatives and many Cuban exiles. The standoff ended after armed federal agents raided the Little Havana home of his uncle to seize the boy and send him to Cuba.

In the current case, both parents are in Miami and have agreed to participate in the U.S. legal system — and both say the girl should go with her father.

"The reaction in the community has been incredibly mature up to this point, and I'm sure it will remain this way," said Carlos Saladrigas, head of the Cuba Study Group, a nonpartisan group of business and civic leaders formed after the Elian case to promote democracy in Cuba through more moderate channels.

The case began in 2004 when the girl's mother, Elena Perez, won the visa lottery to come to the U.S. with her son and daughter, each of whom has a different father. Both fathers agreed to allow their children to go, but things did not go well for Perez in the U.S., and in December 2005 she was hospitalized after a suicide attempt. The children were put in foster care and ended up with the Cubas family. Perez agreed to allow them to adopt her son, now 13, but not her daughter with Rafael Izquierdo, 32.

Top Miami lawyer on the case
Izquierdo, a farmer from the central Cuban village of Cabaiguan, said he wants to bring his daughter back to his family home, where he lives with his parents, wife and their 7-year-old daughter.

"Her room is ready with and her bed and her little toys," he said Thursday.

When the reporters demanded to know whether the girl would not be better off growing up in the U.S., Izquierdo did not waiver. "I want my daughter to be with her father. I believe all children should be with their parents," he said.

Izquierdo, who is represented by immigration law expert Ira Kurzban, has complained that he has been allowed only 20 visits with his daughter and that often she is brought to him exhausted after a day of other activities. Still "their is love between us," he said.

Perez seconded Izquierdo's request.

"Now that she's not going to her mother, she should go to her father," Perez said of her daughter. "Those are the two best people in the world to be at the side of a child."

Cubas became a controversial character in the late 1990s for his role in allegedly assisting top Cuba ball players leave the island. In 2005, his sports agent certification was suspended following accusations by one defector that Cubas took his immigration documents and refused to return them. He has denied the allegations.

On Cubas' side is top Miami lawyer Alan Mishael. Several volunteer attorneys from the Washington D.C.-based law firm Hogan & Hartson represent an independent guardian who favors leaving the girl with Cubas. Several more top attorneys for the Florida Department of Children & Families also appear to favor Cubas.

'Rights of parents should be above all'
Cubas said the girl, who calls him "Papi," shouldn't be separated from her brother and doesn't want to go back to Cuba.

"I don't believe this is a matter of where their better life could be provided," he said. "It is our belief, as is the wishes of the children, that they remain together and that's why we're here."

But even popular Miami Spanish-language radio and television personality Ninoska Perez Castellon, who regularly rails against Fidel Castro and "leftists" on her morning show and who championed Elian's stay in Miami, said ultimately Izquierdo will likely regain custody.

"If the mother is saying she should be with the father, and the father is saying he wants his daughter, it would be very difficult for her not to go with him," she said. "Cubans understand that the right of parents should be above all."

Both Perez and Saladrigas said the community's fear was that in both the Elian case and this one the fathers were pressured to bring the children back by the Castro government.

"The concern is whether they are speaking from their heart or being coerced, and there is no clear answer to that. You will never know," Saladrigas said, adding, "If it wouldn't be for that it would be a no-brainer."

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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