Monday, June 15, 2015

International Child Travel: USA has No Exit Controls

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.