Does a 12-year-old's wish to live in a free country take legal precedence over the traditional right of parents to decide where their children shall live?
So far the answer is "yes" in the unusual case of Walter Polovchak, who emigrated with his family on a joint passport to Chicago from the Ukraine six months ago. He ran away from home to stay with relatives July 14 when he learned that his parents planned to return to the Ukraine.
Since then, through a lawyer friend of the relatives, he has asked for and received political asylum from US Immigration authorities. His application argued that he would be denied religious freedom if he were to return.
But the case, which raises anew the question of where parental rights end and where children's rights begin and at what age, is far from settled.
Much now depends on the custody decision expected here Sept. 9. Walter and his 17-year-old sister, Natalie, who also wants to stay in this country but has her own passport, have both been in the temporary custody of Illinois state authorities.
The judge on the juvenile court case has been leaning toward a reunification of the family. If custody is returned to the parents, who insist (just as Soviet Authorities do) that the action so far is tantamount to "kidnapping," they could decide to pack their bags for the Ukraine and be within their rights in taking Walter with them.
Julian E. Kulas, Walter's attorney, says he hopes the family will be reunited but is prepared to stage a long legal fight over any move to take the seventh grader back to the Ukraine.
"The custody decision is important but it's not necessarily the ultimate decision,' insists Mr. Kulas. He argues that Walter, because his views are widely known and "tremendously embarrassing" to the Soviet Union, is likely to suffer the consequences of any return in less education, a poorer job, and isolation from his friends.
Though the Soviet Union has warned of dire and far-reaching consequences for US- Soviet relations if Walter is not returned to his parents, a State Department source says that his age makes a personal retaliation against Walter unlikely.
Michael and Anna Polovchak, Walter's parents, speak no English but admit through puzzled and outraged by what happened. The American Civil Liberties Union (ACLU), which decided that the Polovchaks were not being treated fairly in the case, have since intervened on their behalf.
The result is a struggle between lawyers over parents vs. children's rights. The ACLU argues that the parents have a constitutional right to decide where their children shall live. Mr. Kulas intends to argue, if the custody question is resolved in favor of a united family, that the right to political asylum in this country takes precedence over any custody decision made under state law.
Lawyers agree that if there were no international considerations involved, the case should be relatively clear cut. Most runaways, for instance, are eventually returned to their parents. Similarly, few courts would be sympathetic to a child who didn't want to accompany his parents.
"Not a court in the land would allow the child to stay in Chicago if the family moved to California," notes Martin Guggenheim, a New York University law professor who agrees with the Soviet and ACLU position in the case. "Generally the Supreme Court has given parents wide latitude to raise their children as they see fit."
Still no one argues that parental decisionmaking is an absolute right.
"The child has a right not to be kidnapped and not to be hit, battered, or neglected," says Anthony d'Amato, NorthWestern University law professor. "If it could be shown that the child would be hurt if the parents took him back, he'd have a winner of a case."