INTERNATIONAL TRAVEL: PRIVILEGE OR CONSTITUTIONAL RIGHT?

After the child arrives in a new country, the first step toward acquiring a new habitual residence is forming a settled intention of his or her parent to abandon the one left behind. It is not necessary to have this settled intention at the time of departure, as it could develop during a stay originally intended to be temporary. Whether there is a settled intention to abandon a prior habitual residence is a question of fact .

In desperation, some parents may consider using extra-judicial forms of recovery, such as traveling to a foreign country to recover a child. Although it may seem easier and faster to use extra-judicial methods, they often violate U.S. federal laws and the laws of the foreign country involved and may potentially exacerbate the situation. For example, the parent who kidnapped the child may have sought assistance from a foreign court or obtained a foreign custody order. In such circumstances, the other parent's direct removal of a child from the foreign jurisdiction, without the assistance of the U.S. authorities, could result in his or her arrest or even imprisonment in that foreign country.

Child victims of international parental kidnapping are often taken from a familiar environment and suddenly isolated from their family, friends, and community, leading them to miss months or even years of schooling. The child may be moved to multiple locations to stay hidden or out of reach of the parent remaining in the United States. Sometimes, the child's name, birth date, and physical appearance are altered or concealed to hide identity.

Additionally, the tense and unfavorable situation between the parents may be emotionally troubling to a child. Kidnapped children are at high risk for long-term psychological problems, including anxiety, eating disorders, nightmares, mood swings, sleep disturbances, and aggressive behavior. As adults, child victims of international parental kidnapping may struggle with identity, relationship, and family issues.

Under federal law, prosecutors may investigate and prosecute the parent who kidnapped the child. However, prosecutors generally have no control over the custodial decisions affecting the child or whether foreign authorities will order the child's return. The Federal International Parental Kidnapping Crime Act criminal statute does not include a mechanism to demand the child’s return to the US. Therefore, it is extremely important to prevent the departure of a child without the written consent of both parents. This can only be done if there is border control at exit points from the United States.