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Cuban Father Wins Major Victory In Custody Case

2nd Hearing Set For October

Custody Trial: Judge Reprimands Defense

MIAMI (CBS4) ― A Cuban father fighting for custody of his daughter has won a major hurdle in court in his fight to bring his daughter home.

A judge in Miami has ruled that the father of a 5-year-old Cuban girl at the center of an international custody battle did not abandon her despite failing to contact her for months. Judge Jeri B. Cohen said in her ruling that the father's efforts to regain his daughter once she was put in foster care "were not marginal for a man of his circumstances," noting that Rafael Izquierdo was not used to dealing with a complex situation like this.

"He has diligently participated in what must seem to him a mysterious and daunting legal process. While geographically, Cuba is only 90 miles from the United States shores, the two countries are philosophically and politically worlds apart," Cohen said.

The state's attorneys had argued that Izquierdo abandoned his daughter by having little contact with her during the first nine months after her mother, Elena Perez, won a U.S. visa lottery and brought the girl and her half brother to the U.S. They also said he should have come more quickly to the U.S. to retrieve her after Perez could no longer care for her.

Izquierdo's attorneys maintain he did speak with the Perez on the phone occasionally and wrote several letters that she never received because she moved around frequently. They also said Izquierdo had to jump through numerous hoops by the Cuban and U.S. governments before he could come to Florida. In her ruling, Cohen said she believes Izquierdo's letters were written after he arrived in Miami for the court case and he never initiated contact with the girl during her first nine months here.

The case now moves into a second phase in which the judge must rule whether the girl should live with her father, Rafael Izquierdo, or stay with her foster parents in Miami.

Another hearing is set for mid-October to decide whether it would cause emotional trauma and endanger the girl to pull her from her foster home. The state's attorneys have argued that removing the girl after such a long time would cause her serious emotional trauma.

Cohen said she would listen to the state's arguments at the follow up hearing, but urged the department to "take the blindfold off and see the forest for the trees."

"The court cannot deny Izquierdo custody of his child," Cohen said.

The girl went into foster care after her mother brought her to the U.S. in 2005 and then attempted suicide days before Christmas. The Florida Department of Children & Families has said it wants the child to stay with her foster parents Joe and Maria Cubas, a wealthy Cuban-American couple. The Cubas family have already adopted the girl's half brother and have cared for the girl for more than 18 months.

Izquierdo wants to bring the girl back to Cuba.

At a news conference held outside the courthouse, Izquierdo said in Spanish: "Truth wins."

"I'm asking for what's mine. I want only what's mine," Izquierdo said. "I'm dying to go home. I want to be with my
family, be together."

His lawyer, Ira Kurzban, said he is unaware of any cases in Florida where a father, after being found to be fit, was denied custody based on "nebulous" psychological harm the child would suffer from being separated from her foster parents.

A DCF official said afterward, however, that "to separate siblings from each other does have a psychological and emotional effect."

The foster parents' lawyer Alan Mishael described the Cubases' home as the "first stable and healthy placement that she's had." He predicts the case will ultimately be decided at the appellate level.

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