BY JAY WEAVER

 A state judge delivered a devastating punch to Elian Gonzalez's relatives in Miami
 by tossing out their lawsuit on Thursday that sought temporary custody of the boy
 so he could remain here while they pursued political asylum for him.

 Miami-Dade Circuit Judge Jennifer Bailey said Elian's great-uncle Lazaro
 Gonzalez had no right to seek custody in family court because he is too distant a
 relative under state law, and that the federal government's decision to reunite the
 child with his father superseded her authority to allow an emergency hearing on
 his custody request.

 ``Elian Gonzalez's physical presence in this country is at the discretion of the
 federal government,'' Bailey wrote in her 22-page ruling. ``The state court cannot,
 by deciding with whom his custody should lie, subvert the decision to return him
 to his father and his home in Cuba.''

 Bailey also lifted an emergency protective order -- granted in a controversial
 decision on Jan. 10 by Circuit Judge Rosa Rodriguez -- that required Elian to stay
 in Miami-Dade County with his relatives until the hearing on his temporary
 custody. Lazaro Gonzalez sued the boy's father, Juan Miguel Gonzalez, for
 custody of the 6-year-old in early January after Elian lost his mother on a boat
 journey from Cuba in late November.

 The great-uncle turned first to family court for temporary custody of the child,
 before heading to federal court to challenge the Immigration and Naturalization
 Service's decision that denied Elian's asylum application. After the Miami relatives
 lost their immigration dispute in federal court last month, they appealed it and
 then rushed back to family court on Saturday to revive their custody petition.

 This desperate dash was not lost on Bailey. The judge said: ``Only after that loss
 . . . and only since the father has arrived in the United States to seek
 implementation of the federal decision, has [Lazaro Gonzalez] returned to state
 court to aggressively seek a hearing in an effort to continue to keep the child in
 Miami.''

 LEGAL ARGUMENT

 The crux of the Miami relatives' legal argument was this: Elian's father is an unfit
 parent because he wants to raise his child under the abusive communist regime
 of Cuban dictator Fidel Castro. They feared that if the government transferred the
 boy to his father, now staying in a Washington, D.C., suburb, they would leave for
 Cuba immediately.

 But Bailey, recognizing Attorney General Janet Reno's broad powers in
 immigration disputes, said: ``The basis for the custody claim is that the child
 should not live in Cuba, with his father, and is better off here. The [family] court's
 ability to reach that decision is derailed by the federal government decision that
 he must return to Cuba, his homeland, and be with his father.''

 Indeed, Bailey, echoing the stand of U.S. officials, said Lazaro Gonzalez ``fails to
 understand the fundamental nature of his case -- it is an immigration case, not a
 family case.''

 The Gonzalez family's attorney, Laura Fabar, said the ruling was a blow to the
 relatives.

 ``It's very disappointing because the child has been left without a legal custodian
 to provide for his basic necessities, such as medical care,'' Fabar said. ``As long
 as he is in the country, there will always be the necessity for an adult to take
 care of the basic needs of this minor.''

 The federal government has one adult in mind for that important role: Elian's
 father, a 31-year-old cashier at a government tourist park, who is married and has
 an infant son.

 LOVING FATHER

 The INS found that Juan Miguel Gonzalez had a loving, caring relationship with his
 son, and Bailey acknowledged that in her opinion.

 Under Florida law, custody can be taken away from a child's sole surviving parent
 only if the parent is proven unfit by ``clear and convincing evidence.'' The child's
 best interests are considered when the dispute is between two parents -- not
 between a parent and a nonparent.

 Bailey went out of her way to stress the societal importance of stopping Lazaro
 Gonzalez's petition in its tracks.

 ``This case has inflamed the passions of our community to the point that
 references to potential riots have been made by our leaders,'' Bailey wrote.

 ``There is no purpose in prolonging the anxiety of this family and other people who
 feel so strongly about this case when the law is so clear and when the inevitable
 result would be ever more crushingly disappointing.

 ``Holding a hearing would only have raised false hopes that somehow this court
 could legally act and keep Elian Gonzalez here.''

                     Copyright 2000 Miami Herald