Jeremy D. Morley
The Secretary of
State’s office 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.
However,
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.
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.
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.
Moreover,
the International Child Abduction Prevention and Remedies Act provides that the
Secretary of Homeland Security, through the Commissioner of U.S. Customs and
Border Protection in coordination with the Secretary of State, the Attorney
General, and the Director of the Federal Bureau of Investigation, “shall
establish a program that (1) seeks
to prevent a child … from departing from the territory of the United States if
a parent or legal guardian of such child presents a court order from a court of
competent jurisdiction prohibiting the removal of such child from the United
States to a CBP [Customs and Border Protection] Officer in sufficient time to
prevent such departure for the duration of such court order; and (2) leverages
other existing authorities and processes to address the wrongful removal and
return of a child.” However, no such program has yet been announced. 6 U.S.C.A. § 241.