The Washington, D.C.-based National Center for Missing and Exploited Children (NCMEC) and the American Bar Association, including its Young Lawyers Division, recommend taking the following steps as a guide for lawyers and clients handling these cases after the child has been snatched by a parent.
Hire an aggressive family law attorney, preferably one with experience in parental-kidnapping situations.
Assemble your documentation of court decrees and custody orders, if any.
If you do not have custody, use the Uniform Child Custody Jurisdiction Act, which established rules help courts determine jurisdiction, to petition for custody in the local family court.
Ask local police to issue a warrant for the arrest of the kidnapping parent.
Insist that a missing person's report be posted immediately on National Crime Information Center and Interpol computers. Many local police departments will mistakenly tell parents that they need to see a final custody order before issuing a missing child report or that a waiting period is required, but this is no longer true. Such delays are prohibited by the National Child Search Assistance Act (P.L. 101-647; 42 U.S.C. 5779, 5780), which requires law enforcement to immediately enter a missing child report into the National Crime Information Center (NCIC).
Contact the National Center for Missing and Exploited Children at 1-800-THE LOST or 703-235-3900. The Web address of its international branch is
http://www.icmec.co.uk. The center maintains a missing children's data base and publishes a booklet on preventing and reacting to abduction.
Contact the local FBI office. If the FBI tells you that you first need a state warrant, point out that the 1993 International Parental Kidnapping Crime Act ended that requirement.
Ask the state prosecutor or district attorney to request the local U.S. attorney's to issue a federal Unauthorized Flight to Avoid Prosecution (UFAP) arrest warrant. The Federal Parental Kidnapping Prevention Act of 1980 provides for the issuance of this warrant.
Once you have the UFAP warrant, ask the FBI to assist in the investigation and to use the services of the federal Parent Locator Service.
Investigate possible civil remedies and consider the viability of a tort suit against the kidnapper, including anyone who may have assisted in the abduction.
Use whatever information you have about the abducting parent in your investigation, such as names of family members or friends who may know of his or her whereabouts.
If you suspect an international kidnapping, after you have the UFAP warrant, ask the FBI to request the U.S. Attorney's office to have the passport of the kidnapping parent revoked.
Call the State Department's Office of Children's Issues (1-202-736-7000), and request the booklet, "International Parental Child Abduction". The booklet outlines what you should do and what the office can do for you.
If you have to litigate the matter in a foreign country, contact the State Department's office of the Overseas Citzens' Services of the Bureau of Consular Affairs for a list of attorneys available for such cases.
Common Red Flags
According to the American Bar Association, the chances of an international abduction may increase when a parent has:
previously abducted the child or threatened to do so,
no strong ties to the child’s home state,
friends or family living abroad,
a strong support network,
no job, can earn a living almost anywhere, or is financially independent,
recently quit a job, sold a home or terminated a lease, closed a bank account or liquidated other assets,
a history of marital instability or a lack of parental cooperation,
a prior criminal record.
To prevent your ex from getting a passport for your child(ren), call the Passport Services Office of Policy and Advisory Services at 1-202-955-0232 for information on blocking your ex-wife from leaving the country with the child. This is what they will tell you:
Send a written request that the child(ren) be placed on a name check system. Send child(ren)'s names, dates and places of birth, plus Social Security Numbers (if you have them), and any other pertinent information (like a physical description), along with your name, address, and a phone number where you can be reached, to Passport Services. Make sure you sign the request. You can FAX the request letter to 1-202-955-0230.
Faxing it is the fastest way to go anyway. Once they receive your request, you will be assigned an investigator. This investigator will call you, to get further details of your situation. One thing that will speed this process along, is to include a copy of your divorce decree or custody orders, that states that neither of you is to remove the child from a state or country (whichever) without the other parent's consent.
After the investigator makes her judgement, he/she will let you know that the passport has been blocked by the name registration system. A few weeks after that, you will get a letter in the mail, with other information from the State Department. This letter from the state department, proves to be another nail for the ex's coffin in District Court Proceedings. If for no other reason, than it shows that you have valid fears and concern for the well being of your and your childs rights.
Remember, it is your childs right to have involvement from both of its parents. Although many women believe children to be "theirs", most states have passed laws that prove that children are their own people with certain rights. If you stick to this, as a basis for your concerns, you may do well in your court proceedings.
CAUTION: Please note this does not stop foreign nationals from obtaining passports from their own country.
The following information comes from the Department Of States' Passport Assistance To Parents page, which also has links to more information on International Adoption & Child Abduction.
Parents involved in international custody disputes may receive information about the United States passport of a minor from the Department of State, Passport Services - address below. Either parent may request information about their child's U.S. passport. The request must be in writing, and may be sent by mail or by FAX. Provide the child's full name and date and place of birth and the requesting parent's address, phone number and signature.
If a parent fears that a child might be taken abroad by the other parent without the mutual consent of both parents, the child's name can be put in the U.S. passport namecheck system. Then, if an application is received, the requesting parent will be informed before issuance of the passport.
When there is a court order from a court of competent jurisdiction which either grants a parent sole custody, or which, in effect, forbids the child's travel without the consent of both parents or the court, and the order is provided to Passport Services, a U.S. passport may be denied.
Passport information may NOT be provided about the other parent.
Requests and, if relevant, court orders should be sent to:
Passport Services
CA/PPT/PAS
Suite 260
1111-19th Street, N.W.
Washington, D.C. 20524
Phone: (202) 955-0231
Fax: (202) 955-0230
This process does not apply to foreign passports. A child who has or may have the citizenship of another country (which could happen if one parent has a foreign nationality) may be eligible to hold, or be included in, a foreign passport in addition to a U.S. passport. The concerned parent may contact the embassy of the other nationality for information and assistance.
Also, if you know what school the children went to last, send for a copy of their records using this letter;
REQUEST FOR RECORDS
Month, Day, 20XX
Office of (school name) Elementary/Secondary School
Address
City, State, Zip
To Whom It May Concern:
Please accept this letter as a formal request for any and all school information regarding my biological [son/daughter], [child's name]. I would like this letter to be entered into [child's name]’s permanent school record. As there is no court order barring me from contact with my [son/daughter] and I have always tried to be an involved [father/mother], I am exercising my rights under State law and FERPA to have full, unhindered access to my [son/daughter]’s school information.
I have attempted to get this information through his [father/mother], but due to our inability to communicate, I am requesting this information directly from the school. Information to be released includes, but is not limited to, the following:
· Photocopies of all report cards, achievement tests, permission slips, school newsletters, school picture notification, and any other paperwork that is sent to [child's name]’s primary residence.
· Make sure that my name is in the [Father/Mother] spot on any and all school records, make sure that my name, address, home & work telephone numbers, and my [wife/husband's] work number are included in the school records as emergency contacts (this information is provided below).
· To be able to contact teachers, aides, counselors, principals, and other school personnel to discuss [child's name]’s progress in school, any behavioral or disciplinary concerns, and general social well-being of [child's name] in school, via telephone, email, fax, or in person.
· I want to be notified of and have the opportunity to participate by telephone (or in person if possible) in ANY and ALL meetings, conferences, disciplinary discussions, and any other meetings which require parent participation.
· Copies of any standardized testing results along with opportunities to speak with school personnel if any help is needed interpreting the results.
· Copies of school calendars and notification of special events (winter/spring concerts, plays, school carnival, etc).
· ANY and ALL disciplinary actions (suspension from school or school bus, detentions, etc.) on a timely basis so that [child's name]’s [father/mother] and I may discuss [his/her] behavioral concerns when they happen.
I would also like to be able to volunteer to help out in [child's name]’s classroom whenever possible. I am open to reading to students, doing one-on-one work with any student that needs help, discussing career choice(s), and many other activities that would be beneficial, not only to [child's name], but to [his/her] entire class as well.
I realize that completing a mailing daily is unreasonable. I would be satisfied that non-timely documents can wait and be mailed in bulk. However, any materials or notifications of meetings that are highly time-sensitive need to be mailed in time for me to be an active participant in [child's name]’s schooling. If the time frame is too small for mailing, please call me at one of the telephone numbers listed below to inform me. You may also fax me any information as well.
I understand that there may be copying or postage costs involved in obtaining material for me. This is not a problem, and I am more than willing to pay for them. Just send a statement whenever such costs are incurred. If you prefer, I will be glad to provide pre-stamped and pre-addressed envelopes in order to make it easier for you to mail me [child's name]’s school information.
In closing, I would like to be notified (immediately upon the receipt of this letter) of the name of [child's name]’s teacher and the times during the day that I would be most likely able to telephone and speak with him or her. If you have any question as to whether a piece of information should be sent to me, send it.
Thank you in advance for your cooperation. If you have any questions, please do not hesitate to contact me.
Sincerely,
Name
Address
City, State, Zip
Phone and FAX Number(s)
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Occasionally you may find that your attempt at getting information is blocked by a teacher, staff member, or other third party. The reasons for this can range from a simple unwillingness to release information, all the way to a personal (and inappropriate) involvement with one of the parents or the child. If you encounter this kind of interference, we suggest you send a second request in an envelope with no return address, mailed from out of state, and marked "PERSONAL & CONFIDENTIAL". In the letter, reference the previous letter, how it had been ignored, and then quote the law from FERPA that applies. Finally, send a blind carbon copy to the superintendent of that school district.
1) Call your child's school and request the child's school records. These include report cards, attendance records, visits to the school nurse, etc.) Don't waste your time with the individual teachers, speak directly to the Principal or Head Administrator.
2) If they refuse, tell them that they will be answering to a charge of violating Federal law if they don't immediately make the records available to you.
The Federal Law that that they're in violation of is the Family Educational Rights and Privacy Act of 1974.
Quote this passage to them, then follow up by FAXing it in:
Section 99.4: Sec. 99.4 What are the rights of parents? "An educational agency or institution shall give full rights under the Act to either parent unless the agency or institution has been provided with evidence that there is a court order, state Statute, or legally binding document relating to such matters as divorce, separation, or custody, that
specifically revokes these rights." (Emphasis added)
The meaning and intent of this Statute is pretty clear. Note the words "either" and "specifically". Unless your Divorce Decree specifically excludes you from access to your child's school records, YOU HAVE THE RIGHT TO ACCESS THEM. The provisions in FERPA apply to ALL schools that receive Federal funding of any kind.
Note that 'school records' include:
· report cards
· enrollment forms
· achievement tests
· progress reports
· field trip forms
· incident reports
· disciplinary reports
· medical records
· emergency notification cards
· any other officially generated reports, including email
**Special Note** on letters and e-mails between the teacher or school and other parties:
Recently an incident occurred where we were asked by a concerned parent about obtaining copies of e-mails between the other parent and the teacher. In this case, the teacher had mentioned a number of e-mails but refused to discuss their content. They wanted to know if they could access these e-mails under FERPA. Our reply was in two parts, the first was on correspondence in general, whether it be letters, notes, or other documents. The second was additional thoughts on e-mail correspondence and school district policies.
We strongly suggest checking with an attorney or your school to verify that this information applies to your school district. Different school districts have different rules and guidelines, and although this should be valid in most instances, your school district may be different.
1. The only thing that can be excluded from the record is personal notes used by the teacher and never intended for viewing by any other person. Two party communications do not fall under that definition, since they are, by their very nature, meant to be viewed by others. Examine your state statutes to verify whether or not this is the case in your school district.
2. It's likely that the exception they are trying to use is "(1) Records of instructional, supervisory, and administrative personnel and educational personnel ancillary to those persons that are kept in the sole possession of the maker of the record, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record".
If you check the school district's e-mail policy, it almost certainly states specifically that e-mail received through the district is the property of the district and reserves the right of the school district to monitor employee e-mails, thus eliminating the "not accessible to any other person" requirement. That is in addition to the fact that this is a two party communication as mentioned before.
3) If you want legal recourse, send the same information to them in a registered letter informing them of your intention to bring them to court for violation of this law. If, after receipt of the registered letter, they still refuse to honor your request for the records, you may then take them to court for violation of the above Statute.
NOTE: If at all possible, get something in writing from them stating their refusal to provide the records. Tell them that your attorney has requested that they provide you with a written refusal. The moment they do this, they've provided you with proof that they are, in fact, violating Federal law.
If necessary, subpoena all of the clerks in the school office (there are usually only three or four) and the school's Principal and Vice-Principal. Put them through deposition and let your attorney give them a harsh dose of reality. Chances are you'll never actually get anywhere near a deposition, because as soon as your subpoenas are served the school officials will get worried. Then they'll contact the Education District's attorney(s) who will most likely tell them that they face serious repercussions if they don't comply. Remember- your right to have access to your child's school records IS THE LAW. They may not know that, but the Education District's attorney will.
Always inform the school where your child attends in writing (see below) that you want any and all paperwork, records or reports listed above sent to you just as they are sent to the custodial parent. Do you best to be pleasant and reasonable, yet firm with school officials you deal with. Make sure that they know that one of the school’s qualifications for receiving federal funds is dependent upon compliance with 20 U.S.C. 1232g (FERPA) to receive federal funds.
The key part of FERPA is as follows:
(1)(A) No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.
When contacting a school under the auspices of FERPA, here are a couple of key points to keep in mind:
1. A school has 45 days in which to respond to your request.
2. If you are within commuting distance the school is NOT required (although they can) to provide you with a copy of the records. They must, however, provide you with an opportunity to inspect the records at the school within the alloted time.
3. Your complaint must be timely. That means you must submit your complaint to FPCO within 180 days of the date you knew OR SHOULD HAVE KNOWN of the violation.
For more information, or to report a school for violating FERPA, contact the Family Policy Compliance Office of the Department of Education at:
U.S. Dept of Education
Family Policy Compliance Office
600 Independence Ave.
Wash. DC. 20202
(202) 260-3887
Texas Family Code Sec. 153.072. Written Finding Required to Limit Parental Rights and Duties.
The court may limit the rights and duties of a parent appointed as a conservator if the court makes a written finding that the limitation is in the best interest of the child.
Sec. 153.073. Rights of Parent at All Times.
(a) Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:
(1) as specified by court order:
(A) to receive information from the other parent concerning the health, education, and welfare of the child; and
(B) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
(2) of access to medical, dental, psychological, and educational records of the child;
(3) to consult with a physician, dentist, or psychologist of the child;
(4) to consult with school officials concerning the child's welfare and educational status, including school activities;
(5) to attend school activities;
(6) to be designated on the child's records as a person to be notified in case of an emergency;
(7) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
(8) to manage the estate of the child to the extent the estate has been created by the parent or the parent's family.
(b) The court shall specify in the order the rights that a parent retains at all times.
I hope this helps...
[Edited by Ukiah on 05-10-2001 at 02:05 PM]
