Jeremy D. Morley
When seeking or opposing an order to prevent or limit a child’s
international travel outside the United States it is important to understand
that the United States has no exit controls (except to the very limited extent
of the Prevent Departure Program).
The Secretary of State’s office now expressly and helpfully
advises judges that “the United States does not have exit controls. This
means that U.S. citizens may leave the country without interference from or
detection by the U.S. government. Additionally, the Department of State
cannot track a child’s ultimate destination through his or her use of a U.S.
Passport if the child transits a third country after departing from the United
States. Further, U.S. citizen children may also have another nationality
and travel on that country’s passport making it more difficult to determine the
child’s whereabouts.”
Other countries, such as most South American countries, do not
allow a child to exit the country when accompanied by only one parent without
producing evidence of the other parent's consent or a court order authorizing
the exit. These rules are significantly effective. Unfortunately, there are no
such requirements in the United States. A child may leave the U.S. without
anyone checking the child's papers and with no check on the connection between
the child and whoever is accompanying the child, except that the airlines will
make sure that the child has the papers that are required to enter the foreign
country.
Proposals that the United
States should impose similar rules are met with the claim that it would be
prohibitively expensive to employ the officials that are needed to monitor the
system and that it would interfere with freedom of travel. Suggestions that the
responsibility should be placed on the airlines to require that anyone
traveling alone with a child should produce appropriate documentation are met
with the airlines' claims that it would be too heavy a burden on them.
The Department of Homeland
Security operates a Prevent Departure Program that was created in the aftermath
of 9/11 to stop non-U.S. citizens from leaving the United States. It may be
useful to prevent an abduction if the correct court order is in place and if
the person to be placed on the list is an alien. Either children or parents can
be placed on the list if the necessary conditions are fulfilled.
Although the program was
created in order to intercept known or suspected terrorists, criminals and
other wanted individuals, the Office of Children's Issues at the U.S. State
Department has been successful in extending it to include specific cases of
prevention of international child kidnappings.
The program operates through
the transportation industry and it provides a single, comprehensive prevent
departure lookout database of subjects whose imminent departure can be flagged.
If a named abductor and/or
child seek to leave the country by means of a public carrier, the
transportation company is required to prevent the departure. Whether law
enforcement will arrest the parent will depend on the terms of any arrest
warrant or court order.
The requirements of the
program are as follows:
1. The parent whose name is
being added to the program must not be a U.S. citizen (this will include a dual
national);
2. A law enforcement agency
contact with 24/7 coverage must be included in the nomination;
3. A court order showing which
parent has been awarded custody or showing that the non-citizen parent is
restrained from removing the minor child from certain counties, the state or
the U.S. must be in place;
4. The non-citizen parent must
be in the U.S.; and
5. Some likelihood that the
non-citizen will attempt to depart in the immediate future must exist.
The Government Accountability
Office has asked the Department of Homeland Security to consider creating a
program similar to the child abduction component of the Prevent Departure
Program that would apply to U.S. citizens. Unfortunately that suggestion has
not been acted upon.