Guarding Against International Parental Child Abduction
The Importance of a Custody Decree
Under the laws of the United States and many foreign countries, if there is no decree of custody prior to an abduction, both parents may be considered to have equal legal custody of their child. IMPORTANT: Even if both parents have custody of a child, it is still a crime in most states and under U.S. federal law for one parent to remove the child from the United States against the other parent’s wishes. Nevertheless, a custody decree can be helpful to prevent or help in recovery if your child is abducted. If you are contemplating divorce or separation, or are divorced or separated, or even if you were never legally married to the other parent, ask your attorney, as soon as possible, if you should obtain a decree of sole custody or a decree that prohibits the travel of your child without your permission or that of the court. If you have or would prefer to have a joint custody decree, you may want to make certain that it prohibits your child from traveling abroad without your permission or that of the court.
How to Draft or Modify a Custody Decree
A well-written custody decree is an important line of defense against international parental child abduction. An important publication “Family Abduction: How to Prevent an Abduction and What to Do If Your Child is Abducted,” published cooperatively by NCMEC, the Department of Justice, and the American Bar Association, the lists several recommendations to help prevent the abduction of your child if your spouse has significant ties to a foreign country. For instance, where there are indicators of possible abduction, such as threats to abduct, it may be advisable to include court-ordered supervised visitation and a statement prohibiting your child from traveling without your permission or that of the court. If the country to which your child might be taken is a member of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), your custody decree should include the terms of the Hague Convention that apply if there is an abduction or wrongful retention. The American Bar Association (ABA) also suggests having the court require the non-citizen parent or the parent with ties to a foreign country to post a bond. This may be useful both as a deterrent to abduction and, if forfeited because of an abduction, as a source of revenue for you in your efforts to locate and recover your child. For further prevention information, you should contact the Department of State, Office of Children’s Issues, Prevention Unit at 202-736-9156.
Reminder: Obtain several certified copies of your custody decree from the court that issued it. Give a copy to your child's school and advise school personnel to whom your child may be released.
You may also ask that your child's name be entered into the State Department's Children’s Passport Issuance Alert Program by contacting the Office of Children’s Issues’ Prevention Unit at 202-736-9156 or faxing a request to 202-736-9133. This will enable the Department to notify you or your attorney if an application for a U.S. passport for the child is received anywhere in the United States or at any U.S. embassy or consulate abroad. If you have a court order that either grants you sole custody, joint legal custody, or prohibits your child from traveling without your permission or the permission of the court, the Department may refuse to issue a new or renewal U.S. passport for your child. The Department may not, however, revoke a passport that has already been issued to the child. There is also no way to track the use of a passport once it has been issued, since there are no exit controls for people leaving the U.S. If your child already has a passport, you should take steps to ensure that it is kept from a potential abductor by asking the court or attorneys to hold it.
Change in Passport Regulations:
As of February 1, 2008, the law requires the signature of both parents, or the child's legal guardians, prior to issuance of a U.S. passport to children under the age of 16.
Both parents, or the child’s legal guardians, must execute the child’s passport application and provide documentary evidence demonstrating that they are the parents or guardians; or the person executing the application must provide documentary evidence that such person has sole custody of the child; has the consent of the other parent to the issuance of the passport; or is acting in place of the parents and has the consent of both parents, of a parent with sole custody over the child, or of the child’s legal guardian, to the issuance of the passport.
The law does provide two exceptions to this requirement: (1) for exigent circumstances, such as those involving the health or welfare of he child, or (2) when the Secretary of State determines that issuance of a passport is warranted by special family circumstances.
Foreign Passports - the Problem of Dual Nationality
Many United States citizen children who fall victim to international parental abduction possess, or may have a claim to dual nationality. While the Department of State will make every effort to avoid issuing a United States passport without the consent of both parents, the Department cannot prevent embassies and consulates of other countries in the United States from issuing their passports to children who are also their nationals. You can, however, ask a foreign embassy or consulate not to issue a passport to your child. Send the embassy or consulate a written request, along with certified complete copies of any court orders you have which address custody or the overseas travel of your child. In your letter, inform them that you are sending a copy of this request to the United States Department of State. If your child is only a United States citizen, you can request that no visa for that country be issued in his or her United States passport. Just keep in mind that no international law requires compliance with such requests, although some countries may comply voluntarily.
The United States government does not have exit controls at the border. There is no way to stop someone with valid travel documents from leaving the United States. The U.S. government does not check the names or the documents of travelers leaving the United States. Many foreign countries do not require a passport for entry. A birth certificate is sufficient to enter some foreign countries. If your child has a valid passport from any country, he or she may be able to travel outside the United States without your consent.