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ACLU Position in Polovchak Case

September 03, 1985

This is in response to Alan Dershowitz's criticism (Editorial Pages, Aug. 4) of the American Civil Liberties Union's position in the Polovchak case.

Though Dershowitz long ago aligned himself against the Polovchak parents--in 1980 he was identified as an expert witness for the child in the state court juvenile case--I was still surprised by the extent to which Dershowitz misrepresents the facts in order to justify his attack on the ACLU.

Dershowitz starts from the unfounded premise that the ACLU took the case in order to force Walter Polovchak to return to the Soviet Union and that the federal court has ordered that relief. We have never sought such a remedy, and the federal court has not issued any such ruling.

The ACLU of Illinois first agreed to represent the Polovchak parents because in 1980 they lost the custody of their then 12-year-old son Walter in a state juvenile case in which they were not represented by counsel and in which no evidence whatsoever was formally submitted in court. The juvenile court's actions were subsequently condemned by the Illinois Appellate and Supreme courts. The Illinois high court held that the family dispute over choice of residency did not justify state intervention and returned Walter to his parents' custody.

However, once again the government tried to limit the Polovchaks' custodial rights without giving the parents any notice of or opportunity to participate in the process. This time, it was the Reagan Administration, a professed supporter of "family values," which took the unprecedented action of issuing a departure control order preventing Walter from leaving the United States. The constitutional right to a "fair hearing" before government effectively terminating custody rights of a parent was established long ago by the U.S. Supreme Court.

It is the violation of these most basic civil liberties principles that the ACLU successfully challenged in the federal court. The federal court enjoined the enforcement of the departure control order because the Reagan Administration had not given the parents a fair hearing before it issuance. The decision of the federal court is an affirmation that no parent, even an alien who is a communist or an atheist and who desires to raise his child consistent with those philosophies, may be denied the right to do so by government without first being afforded an opportunity to defend one's parental rights.

Dershowitz engages in gross distortions in his efforts to prove a politically motivated inconsistency by the ACLU on children's rights issues. In the Massachusetts ACLU case concerning the 12-year-old girl who wanted to live with her lesbian mother instead of her father, we did not , as Dershowitz states, assert that the girl had her own right to decide with whom she wanted to live. Rather, the ACLU argued that the child was denied a "fair hearing" in the proceedings that separated her from her mother because she had not had a guardian or an attorney advocating her independent interests. Thus, the positions in the Massahusetts and the Polovchak cases are compatible. A right to a fair hearing should be accorded to all affected family members in such disputes. We have always respected Walter's right to participate in any proceedings affecting his destiny and, in fact, we have objected to the government's failure to appoint a guardian for Walter in the immigration proceedings.

Contrary to Dershowitz's claim that leftists in the ACLU have seized the parent/child issue in this case and come out in favor of the Soviet Union--thus politicizing our position on children's rights--it is Dershowitz and the government, among others, who have made Walter Polovchak a pawn in U.S.-Soviet relations. We would advocate for fair hearing protections before our government's encroaching upon the rights of any parents, no matter what philosophy of government they believe in.

HARVEY GROSSMAN

Chicago

Grossman is legal director of the American Civil Liberties Union of Illinois and one of the attorneys representing the Polovchak parents.

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