Like many parents who left Cuba recently, Delmys Silva sent her nine-year-old son to the island to spend holidays with his grandmother. Now the boy's father is keeping him in Cuba.
And Silva has learned something she did not know: Cuban laws do not offer clear protection against the international abduction of children, especially if they are Cuban-born.
Desperate to get her son back following Christmas vacation, the Hialeah woman went to the Cuban Embassy in Washington and asked for a permit to travel to the island and pick up her son, Glauder Miguel Alba. But when she got there in February, authorities told her she did not have the right to take him.
“At the Cuban consulate they told me, 'Go and find your son in Cuba. We give you one month to do that,” said Silva. “But the embassy says one thing and immigration (authorities in Cuba) does whatever it wants.”
The boy and his 10-year-old sister Glenda Alba flew on their own to Cuba in December, supervised by a flight attendant, to spend the holidays with their grandmother in Cumanayagua in the province of Cienfuegos. Their father, Miguel Alba, who had separated from his wife and lived in Winter Park, Florida, learned of the visit. He showed up at the grandmother's home in Cumanayagua and persuaded her to allow the children to spend some time with him. He later agreed to return the girl, but not the boy.
“I never imagined that something like this could happen, or I never would have sent my children,” Silva said.
Silva, 34, and Alba, 46, separated in 2016, and she filed a domestic abuse complaint last year that led a Miami family court to issue a restraining order against Alba valid through 2019. One court document said that in one incident, Alba “punched the petitioner in the face and their children intervened. Respondent kept hitting the petitioner and another individual intervened as well.”
Silva was awarded sole custody of both children and the father was barred from seeing them without independent supervision.
That restraining order did little for her in Cuba. When Silva went to police, prosecutors and immigration officials in Cuba, they all gave her the same response: “They said the complaint was not valid because he is the father, (and) it's not a kidnapping because the boy is Cuban.”
Silva also showed Cuban authorities Florida court documents awarding her custody of the children, “but I was told that those were the laws in the United States, not in Cuba,” she added.
The website of the U.S. Embassy in Havana notes that “Cuba is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention), nor are there any bilateral agreements in force between Cuba and the United States concerning international parental child abduction."
“For countries like Cuba that are not signatories or partners with us under the Convention, we normally would not get involved unless there was at least one U.S. citizen,” a State Department spokesperson wrote in an email. “The authority we work under in non-Hague cases is the Vienna Convention which does not extend to LPRs [Lawful Permanent Residents],” the official added.
That means that the return of Silva's son depends on the good will of the Cuban government.
The case, first reported by Telemundo 51, is further complicated because the Cuban-born boy is not a U.S. citizen and the father is considered to have all the rights of a full Cuban citizen even though he lives in the United States.
The parents and children came to the United States as refugees in 2014 because Alba's father was a former political prisoner. All four have U.S. residence, but Alba also retained his Cuban residence because he returned to the island within the two-year deadline. The Cuban residence guarantees him the full rights of Cuban citizenship.
“If he came here as a political refugee, how could he retain his Cuban residence?” said Miami immigration lawyer Wilfredo Allen.
Unlike Alba, Silva did not return to Cuba before the two-year deadline and therefore lost her Cuban residence. She is considered an emigrant and must obtain a special permit to visit the island. She flew to Cuba in February using a special document because Alba had thrown away her passport.
Fearing that the father would try to reestablish the son's residence in Cuba, Silva went during that visit in February to the Cienfuegos office of the Identification, Immigration and Foreigners Directorate, where she coincidentally ran into Alba and their son.
Authorities allowed her to spend some time with the boy. But even as she sobbed and pleaded with officials to let her take her son back with her to the United States, they refused.
“They treated me like garbage, like the emigrant that I am,” Silva said. “I told them that I was as Cuban as them, that just because I don't like to live there does not mean I am not Cuban.”
Silva said one of the government offices she visited told her that she would have the right to fight for legal custody of the son if she returned to live in Cuba for six to 12 months. But that would mean taking her daughter out of school and returning to Cuba “for something uncertain, because I don't know if the judge would give me custody of the boy.”
Silva said she also filed a complaint against Alba with the Cienfuegos police, alleging that he threatened to kill her. She added that she's concerned because the son is not in school, and asked “why Cuban authorities are helping a political refugee?”
The Cuban Embassy in Washington did not reply to a request for comment for this story.
Silva, who does not have a lawyer, also has not received much help from U.S. authorities.
She said she filed two complaints of kidnapping with the Hialeah police on Jan. 25 and March 12, but was told that “the kidnapping did not take place here. They told me they could do nothing.”
Hialeah police are investigating the threats she received from Alba, according to Silva. A department spokesperson did not immediately reply to questions about the case sent Friday.
Silva also notified the Florida 11th Circuit Court that Alba was keeping her son in Cuba. The husband returned from Cuba to attend a court hearing on April 6.
It's not clear why the judge in that hearing, when Alba had clearly violated the order giving Silva custody of the children, decided to only set a new hearing for April 27 and extend the protection order “indefinitely.” Family court hearings are not recorded unless one of the parties involved requests it.
Alba did not turn up for the April 27 hearing.
Lawyers consulted by el Nuevo Herald agreed Silva would have a better chance of getting her son back if she pressures authorities to issue a warrant for Alba's arrest.
In 2013, Cuba returned a Florida couple who had kidnapped their children from the grandparents and fled to the island aboard a boat. But police in that case had issued an arrest warrant on kidnapping charges.
“If there is an arrest warrant in the United States, you could ask Interpol to issue an international arrest warrant for kidnapping,” said Allen. “If Cuba does not honor that warrant, that could turn into a source of friction between the two countries.”
“If the police cannot help her, she should go to the prosecutors with that protection and custody order that he violated and ask for an arrest warrant,” said Christina Morales, a family lawyer.
"She could also get another hearing in the family court to report that he (Alba) had violated some parts of the order, which would turn it into a criminal case,” Morales added. “He could be arrested when he arrives at the airport.”
In Cuba, Silva's mother met last week with a Cuban official at the Council of State, the highest level of the Cuban government, in response to a letter Silva had sent to the office in February.
“They told her that they would thoroughly investigate what was happening with my son,” Silva said, “and would give her an answer after the investigation is over.”