Something isn’t right. The ex recently lost their job. The ex, a foreign citizen, sold the house and moved into an apartment.
Your children told you after the last visit, the ex told them to bring their valuables on the next visit.
The ex is secretive about future plans.
The ex’s parents live in a foreign country, where the ex is from.
You are concerned the ex might abscond to the ex’s foreign home and keep you from the children.
Steps to Prevent International Child Abduction
You should be concerned. Not all countries are on good terms with the United States. Even some who have good relations with the U.S. may not have strong protections against child abduction. Whether the foreign jurisdiction is on good terms or bad, international litigation is uncertain and extremely costly.
International abduction: the legal landscape
For many countries, the United States has treaties or agreements in place for the foreign government to assist with returning the children. In these countries, there are some prospects the children will be returned. However, often there are “safe harbor” rules that allow the foreign country to act if the children are reported to be abused or mistreated. Sometimes, these laws are misused by parents to prevent returning the children to the U.S. Such situations can lead to long delays in returning the children.
Other countries do not have agreements with the U.S. This does not mean there is no chance of return, but it does mean the process can be more complicated or chances of return are minimal. Many countries have significantly different laws than the United States regarding entitlement to custody of children.
Whether there is a legal mechanism for return or not, a parent fighting an abduction to a foreign land is at a disadvantage. It is hard to appear abroad. Witnesses and evidence will be unavailable. The language may be unfamiliar, as will the legal proceedings and standards. Legal representation can be difficult to find. The best remedy is to avoid the problem in the first place. For those parents unable to defend actions abroad, the abduction may be accomplished with almost no involvement from the victimized parent.
Your best defense: the court order
There are hurdles to the abduction of children. The difficulty of your ex in removing the child from the country depends upon court orders addressing passport issuance and foreign travel. These rules apply to minor children 17 years old and younger. The restrictions do not apply once children reach 18; they may be your babies, but legally, they are adults.
If there is suspicion a parent might abduct, it is important to obtain a court order. In pre-judgment cases, this should be relatively easy to do. The opponent to travel will probably need to show the court reasons for suspicion. Loss of connections to the United States, foreign nationality, connection to a foreign land, and similar facts will be relevant. The court should also be apprised of the foreign jurisdiction’s law regarding retention of children, rights to custody, and amenability to assistance if an abduction occurs.
If the ex can show a clear purpose behind foreign travel or signs return is probable — attending summer camp in Canada, or traveling with school, for example – the travel could be allowed. But a parent seeking only the issue of a passport with no clear plans presents a danger of abduction.
If a judgment for custody is already entered, obtaining restraint of foreign travel may be more difficult because the restraint is a change of custody. What exactly constitutes custodial rights is difficult to predict. A judgment clearly stating a parent has sole custodial rights likely suffices. Less certain is a joint parenting, or joint parenting on some issues but providing for the children’s residence with one parent. Some courts have applied joint custody as creating equal rights for both parents, including the right to travel abroad.
The U.S. Department of State issues passports and the State Department will be interpreting the order. Shared or joint custody arrangements may be viewed by the State Department as providing equal parental authority. Permutations of “custody” may cause problems.
In Illinois, for example, “custody” has been abolished, although the court is required to designate residence for federal statutes requiring a designation, even though the designation is not supposed to affect parental rights. Good luck figuring out what the Department of State is likely to do with that.
The best court order specifies the rights of each parent regarding obtaining a passport and traveling internationally. If a judgment or court order expressly allows issuance of a passport, the passport will likely be issued. Likewise, if an order prohibits international travel, the passport and international travel will be denied.
Regardless of the status of court orders, there are steps to take to prevent an abduction.
What to do?
If you feel an abduction to a foreign land is a possibility, ask three questions: 1. Does your child have a U.S. passport? 2. Is your child a citizen or eligible for citizenship in a foreign country? 3. What is the likelihood of abduction?
Does your child have a U.S. passport?
The United States does not have exit controls for leaving the country. This means the U.S. does not require both parents to consent to leave the country with the child. However, in order to leave the country for international travel, your child will probably need a passport.
- If your child does not have a U.S. passport and is under 16 years old, both parents need to consent to passport issuance, or the applying parent needs to show the other parent’s consent is not required.
- If the child is 16 or 17 years old, a passport may not be issued if a parent notifies the U.S. Department of State in writing that he or she objects to the issuance of a passport.
- Whether the child is older or younger than 16, the applying parent must have custodial rights, and if there is a legal guardian with custodial rights, the guardian must consent.
- Children under 16 traveling to Canada or Mexico may be able to cross borders with only a photocopy of the child’s birth certificate.
If the child does not have a passport, parents can register with the Children’s Passport Issuance Alert Program. The program will contact the enrolling parent to determine whether consent is required prior to issuing a passport.
Is your child a citizen or eligible for citizenship in a foreign country?
If the child has ties to a foreign country, extra alertness is required. Some foreign countries will issue passports for a child without both parents’ consent. Others do not require a child to have a passport, but to travel under a parent’s passport.
There is little you can do to prevent a foreign country from issuing a passport. Prevention of removal is the best remedy.
- Obtaining a court order restricting the right to removal may assist foreign authorities.
- If you suspect an abduction is underway, contact local law enforcement, airport police, and the airline and notify them an abduction is occurring.
- Also, contact the U.S. Department of State Office of Children’s Issues.
- Contact the foreign country’s embassy or consulate.
What is the likelihood of abduction?
Responses will depend upon whether an abduction is occurring or is suspected.
- If you suspect an abduction is underway, contact local law enforcement, as well as airport police and the airlines.
- Provide court orders. Be ready to prove you have a parental relationship with the child.
- Request law enforcement to list your child as a missing person with the National Crime Information Center as soon as possible. For airlines, speak with the corporate security officer to determine if there is a reservation in your child’s name.
- Contact the U.S. Department of State Office of Children’s Issues.
Preventing the unthinkable
If abduction is possible, start taking steps now.
- Make sure your court order is complete and clear with regard to international travel and passport issuance. If there is not a clear statement from a court, consider getting one.
- Enroll in CPAIP and keep your information updated, including providing updated custody orders and contact information.
- Notify local law enforcement of the threat of abduction, and provide copies of custody documents. Consider contacting the foreign embassy.
- Request your child’s passport information. This information may include visa information that can tell you the intended abduction location.
- Provide as much information as you can. Make sure you have a scanned copy of your custody order in case you need to email it. Have a current photo available. If you know the destination of the abductor, provide it. If you can obtain likely foreign addresses of relatives, or real estate owned abroad, get the addresses.
Stay alert for changes such as major job changes or selling real estate. Be particularly vigilant if the parent has connections to a foreign country and few in the United States. Watch for sudden or unplanned moves, such as family members moving back abroad. Look for signs the children were told they are leaving, such as removal of treasured toys or items from your home, or the child being told of a vacation.
International child abduction can often be thwarted but requires awareness on the part of the parent. Take advantage of the protections in place. Do not wait to take steps until the abduction occurs. And be ready before the worst starts to happen.
Carl W. Gilmore is an attorney with Metz, Gilmore & Vaclavek in Crystal Lake, Illinois. His practice includes all areas of family law, including divorce, adoption and probate. He appears as counsel for parties, guardian ad litem and mediator. He is a Lawyer of Distinction for 2020. www.mgvlegal.com