My Life As A Litigator

As a litigator who has represented clients in an assortment of complex legal matters including but not limited to international family law matters including divorce or child abduction as well as other civil or criminal matters that require my skills as a litigator, my experience and insight has been invaluable to individuals in crisis. As a Board of Director of the I CARE Foundation, I take great pride in playing an important role in an organization that has helped reunite many children of abduction, protected many others from being kidnapped, and has created multiple outreach initiatives to stop abduction and trafficking.

Friday, September 28, 2012

New York Attorney Joel Walter: International Parental Child Abduction Needs Secondary Departure Screening Program


New York Attorney and I CARE Foundation Member Joel Walter: The Government Accountability Office's Recommendation To Create A Secondary Security Screening Program Similar To The Prevent Departure Program Will Help Prevent International Parental Child Abduction

New York City based attorney
Joel Walter
At a recent meeting that took place at the United States Mission to the United Nations between my fellow members of the I CARE Foundation and participants of the DOS International Visitor Leadership Program, it became clear that when a nation has the ability to ensure that any individual, even its own citizens, cannot depart their country without secure screening clearance in cases when an individual is considered a high-risk child abductor, the number of abductions will be dramatically reduced.  Presently, in the United States, the existing Prevent Departure Program only enables our government to place individuals who do not have a right of U.S. Citizenship on this vital screening list. However, in the rapidly growing world of international parental child abduction, it is critical that any individual, even those persons who are U.S. citizens and who are considered high-risk candidates of child abduction are in fact screened to ensure they are not illegally traveling abroad with a child.  Clearly, the I CARE Foundation's meeting at the United States Mission to the United Nations reinforced our belief and position that the Prevent Departure Program must be modified in order to protect as many as 125,000 American children who may be internationally kidnapped over the next decade if safe guard provisions are not put in place. 
By creating a secondary secure screening program similar to the Prevent Departure Program, we will be able to protect at-risk children of abduction who are intended to be illegally removed from the United States by a parent who possess a right of United States citizenship. With as many as 125,000 children who may be internationally abducted abroad over the next decade, modifying the existing Prevent Departure Program to include coverage of U.S. citizens is critical for at-risk American children . . . New York City based attorney Joel Walter

International parental child abduction prevention is a serious issue for tens of thousands of children targeted for criminal abduction each year as more marriages or partnerships fail, and child custody cases become more complex due to an increase in multi-cultural partnerships. Challenges at-risk parents face concerning cross-border abductions are many, including one in particular that has had serious consequences for many families: the United States does not have safety precautions and policy in place that will prevent a person who has either singular American citizenship or who has duel citizenship inclusive of a right of American citizenship that will screen a high-risk child abductor before they depart the country in order to ensure they are not leaving with a child they are not suppose to be removing.

I am very pleased to share that members of the I CARE Foundation are actively seeking for the United States government to support the highly regarded suggestions made in a groundbreaking United States Government Accountability Office (GAO) report has recommended for the creation of a new international parental child abduction prevention program aimed at establishing a non-departure fly list for United States citizens who have been determined by either our courts or law enforcement as potential high-risk international parental child abductors. 

In the report that Gerald Dillingham, the Director of Physical Infrastructure Issues for the U.S. GAO issued, the GAO recommendation states, "To further help prevent international parental child abduction involving airline flights, particularly for persons identified as high risk for attempting such abductions, we recommend that the Secretary of Homeland Security consider creating a program similar to the child abduction component of the Prevent Departure program that would apply to U.S. citizens."

The GAO report, titled 'Program Aimed At High-Risk Parent Abductors Could Aid In Preventing Abduction' was requested by Congressmen Jerry Costello (D - Illinois) and Tom Petri (R - Wisconsin), the respective Chairman and Vice-Chairman of the House of Representatives 'Subcommittee On Transportation And Infrastructure'. 

The landmark report states that since the year 2000, the number of outbound international parental child abduction cases reported to the Department of State, many of which likely included air travel, has nearly tripled. 

In addition, various nongovernmental child abduction prevention stakeholder reports, including the comprehensive studies published in Peter Thomas Senese and Carolyn Vlk's  resource guide on IPCA titled 'The World Turned Upside Down', indicate that the number of unreported international parental child abductions have also substantially increased due to various factors including population growth and immigration migration trends.

A response from Jim Crumpacker of the Departmental GAO/OIG Liaison Office of the Department of Homeland Security (DHS) concurs with the GAO recommendation to create a secondary security screening list in order to stop American child-citizens from being illegally abducted abroad; however, DHS cites challenges that exist to implement such a program. Specifically, "DHS strongly agrees that preventing international child abduction is a very important issue. The Department also agrees that expanding its current efforts along these lines to include pre-departure flight screening for potential U.S. citizen abductors could be helped in preventing some abductions." The response by DHS then states that there do exist challenges in implementing a secondary security screening list when he states, "However, a number of challenges exist to visibly implementing a high-risk abductor list for U.S. citizens. These include potential constitutional, operational, privacy, and resource issues, among others. DHS remains committed to continuing its work with the U.S. State Department, the airlines, and other stakeholders to better prevent these abductions. DHS will consider options to expand its efforts, as reasonably appropriate."

The statements by both the GAO and DHS of the grave necessity for a security screening program in the face of the rapid expansion of the criminal international child abduction of American child-citizens originating from the United States offers keen insight for the courts of local jurisdiction who are responsible in issuing orders and remedies that will protect a child from abduction.

The recommendation from the Government Accountability Office, agreed by both the Department of Homeland Security and the Department of State, sends an important message to local courts involved with a child's welfare when they consider the potential for a child's international abduction that there is a real and growing problem of American child-citizens who are either criminally abducted from the United States or illegally detained in a foreign country after travel orders are granted. The local courts charged with oversight of a child must take note that the United States federal government is directly saying that existing state and federal government programs and policies created to prevent abduction are not enough to prevent child abduction, and serious loopholes exist that allow for children to be stolen and taken abroad - where too many defenseless children are never recovered. It is my hope that the convergence of multiple government agencies cited in the GAO report, each declaring that IPCA is a real problem, will cause local courts to realize their need to act prudently and with keen insight on all the local and international issues involving a potential child abduction. With thousands of children criminally abducted from the United States and taken abroad each year, the creation of a secondary security departure list will stop a substantial number of American child-citizen kidnappings from occurring each year. This recommended policy is exactly what the child abduction prevention community has been calling for.

According to the new report, government and non government stakeholders agree that the creation of a security program similar to the existing 'Prevent Departure Program' (established in 2003) which is administered by the Department of Homeland Security and utilized by the Department of State's Office Of Children's Issues may significantly reduce the growing number of cross-border parental child abductions each year. Presently, the 'Prevent Departure Program' allows for precautionary security checks to occur, whereas a legal or illegal alien resident living in the United States and who is considered to be a potential parental child abductor is prohibited from traveling abroad with their child due to court orders prohibiting the child from international travel. Additionally, in order for an individual to be placed on the Prevent Departure Program, either a court or law enforcement must determine that a potential international child abduction threat is a possibility. Once this occurs, it is up to the Department of State to request to the Department of Homeland Security that a person be placed on the non-departure list.

One of the great challenges targeted children and parents of international parental abduction face is the limited amount of abduction prevention laws or government programs in place to prevent a United States citizen, or more commonplace, a United States citizen possessing rights of dual citizenship from departing the country with a United States child citizen despite non-removal orders issued by a court. Specifically, one of the glaring ways that a parent of dual nationality living in the United States is able to illegally remove a child from the country is if they and their child travel by air on either a valid United States passport, or, if they travel on a secondary passport issued by their country of origin, which, in most cases, the child would have automatic rights of citizenship to. In both scenarios, a program such as the Prevent Departure Program would not be able to prevent abduction from occurring because the individual is a U.S. citizen and as such is not eligible for inclusion in the Prevent Departure Program. In addition, international abduction by either land or sea would have similar challenges.

If the Government Accountability Office recommendation is acted upon, and a new security screening process is created to protect children at risk who cannot be protected under present government programs, then children who are either the product of multicultural relationships targeted for illegal international removal or children of parents simply desiring to leave the United States with their child despite court orders will be significantly more protected.

Presently, the United States government has several programs in place to prevent international parental child abduction. This includes the following:

1. The State Department requires both parents or guardians consent prior to the issuance of a child's U.S. passport.

2. Parents can sign up for the State Department's Children's Passport Issuance Alert Program.

3. Parents can contact the State Department's Office of Children's Issues to place a suspected non-U.S. citizen abductor on the DHS's Prevent Departure.

Additionally, there currently exists no database that captures information pertaining to child custody and a court's orders concerning a child's travel restrictions. And even with court orders in place, it is difficult for law enforcement to uphold travel orders, in part due to the lack of an up-to-date nationwide database. When we add that the United States generally does not exercise departure controls at our borders for citizens possessing a valid passport from leaving our country, we begin to realize the ease at which certain individuals may be able to illegally remove a child. Clearly, the Prevent Departure Program offers abduction prevention assistance for targeted parents and children who are non-nationals. However, without a security screening process for parents possessing American citizenship that are considered high-risk abduction threats, prevention of these types of cases will remain extremely difficult. There is no question in my mind that children who face potential international abduction need the United States government to establish additional policy or program that will protect them such as the secondary screening program recommended by the Government Accountability Office and the Department of Homeland Security. The work conducted by the GAO Infrastructure team in thoroughly researching this issue and bringing to light the real need for their suggestions hits right on one of the key issues that attorneys like myself who practice international family law as well as targeted parents of abduction realize: that our nation's children must be protected from the cruel threat of parental kidnapping. I urge others to sign the White House petition site and send a message to our policymakers that we need to new abduction prevention programs.

Clearly, the lack of exit controls makes timing crucial in preventing international parental child abductions involving an airline flight. If a child has a valid passport, preventing an abduction on an international airline flight could be very difficult even if a parent has obtained a custody order barring such travel because that parent would not only need to involve law enforcement but do so with enough time to intercept the abducting parent and child before they board an international flight." The report further adds that often, "A parent does not know that another family member plans to board the child on an international flight, and thus may not contact law enforcement on time." Various studies show that many abductions occur when the targeted parent is unaware of the other parent's abduction scheme.

Of course there appears to be constitutional issues at hand too. For example, why should an American citizens should be treated differently than resident aliens when the risk of abduction is the same, if not greater, as we are addressing preventing abduction of children from or by parents resident in the United States?

According to the critically herald Government Accountability Office report, "Preventing international parental child abductions can be very difficult and depends on a number of factors, including the parent's knowledge of the abduction risk and the existence of clear custody status for the child. While prevention efforts available to parents, such as contacting the State Department to request a passport alert for a child, generally require that the parent have some knowledge beforehand of the risk that an abduction might occur, abductions often occur when the parent has no such knowledge. In general, prevention efforts also require clear custody status. For example, in order for a parent to add a child and suspected abductors to the DHS' Prevent Departure list, the requesting parent must demonstrate that he or she has parental or custodial rights to the child and that there is a court order barring the child from traveling internationally with the suspected abductor. However, custody laws vary by state, and many parents may not have such clear custody documentation available." The report further states that according to the Department of Justice, as cited in the GAO report, "In cases where the parent is unaware of the abduction risk, and where there is no documentation of the child's custody status, preventing such abductions is extremely difficult.

The GAO report further emphasizes the need for a secondary prevent departure list when it states in its report, "Department of Homeland Security officials told us that their Prevent Departure list - which requires a custody or court order specifically banning the child in question from traveling internationally with a specified parent or someone acting on behalf of the parent - is quite effective at preventing abductions involving non-U.S. citizen abductors. Officials at the State Department added that a similar list for U.S. citizens would be very effective in cases where there was already a custody or court order preventing the child from traveling abroad with the specified parent."

Obstacles for the Department of Homeland Security to implement a secondary prevent departure list do exist. According to the GAO report, "DHS may need additional statutory authority and potential additional financial resources to implement a high-risk abductor list for U.S. citizens. As previously discussed, the Immigration and Nationality Act provided departure control officers with the statutory authority necessary to prevent non-U.S. citizens from departing the country through the Prevent Departure program. This authority is insufficient to establish and administer such a list for U.S. citizens. Consequently, DHS would need to explore other current existing statutory authority to seek new authority to administer a program similar to the Prevent Departure program that would apply to U.S. Citizens."

I CARE Foundation director Peter Thomas Senese stated, "Reducing the capability of an abducting parent to depart the United States illegally with a child is one of the most pressing preventive matters our government must address. There are two significant steps that will dramatically reduce the number of children from abduction. One is the GAO recommendation for a security screening program geared for U.S. citizens considered to be high-risk abductors. The second method is to alter international travel documentation requirements for minors under 16 traveling by land or sea to Canada, Mexico, or to certain Caribbean-island nations under the existing Western Hemisphere Travel Initiative. Presently, under the WHTI, a child may present only a photocopy of their citizenship papers such as a photocopy of a birth certificate in order to travel abroad. As discussed in 'The World Turned Upside Down' I co-authored with Carolyn Vlk, existing WHTI departure policy for children traveling abroad by land or sea offer parental child abductors a significant method to abduct, and this too must stop. If the Prevent Departure program is replicated to prevent individuals possessing a right of U.S. citizenship, we will create a formidable barrier for would-be abductors intending to abduct defenseless children. Unquestionably, it is the goal of parents, advocates, the judiciary, law enforcement, lawmakers, and government agency stakeholders to prevent the abduction of children domestically or abroad. All programs designed to stop abducting parents who have circumvented existing abduction prevention policies will dramatically reduce the number of children criminally abducted abroad. I urge others to sign the petition in support of creating new abduction prevention programs and policies located on the White House website."

Obviously, the number of reported and unreported cases of U.S. child-citizens being abducted abroad continues to grow at significant and unacceptable rates. The exact number of abductions is unknown due to unreported cases of parental abduction to law enforcement of the Office of Children's Issues; however, we do know many thousands of U.S. child-citizens are abducted from America alone each year, and that this number is growing significantly. If the abduction growth rate remains the same over the next ten years, we will have more defenseless American children criminally abducted abroad and wrongfully detained than can fill a professional football stadium. And that is absurd!"

Over the past year, the I CARE Foundation has worked diligently at understanding many issues surrounding how our nation's children get abducted. Clearly, one of the major ways this happens is when a parent has a U.S. passport or more importantly, duel citizenship from the United States and another country. When this occurs - because that person is an American, under present policy, we can not place them on a screening list even if they are considered to be a high-risk child abductor.  

Clearly, this must be changed! The I CARE Foundation has been and will continue to be committed to this change.

To learn more about me, please visit Joel S. Walter & Associates. 

No comments:

Post a Comment