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By Jennifer M. Painepassport revoke child support

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is Part 2 of a three-part series on passport problems for support non-payors. Click here to read Part 1.

There are plenty of costs for parents who dodge child support payments, most of which parents already know. Your judge can send you to jail, have a sheriff boot your car, order your driver’s and professional licenses revoked, and allow the State to garnish your wages, tap into your bank accounts and collect your income tax returns, to name a few. But other costs for even unintentional conduct go unknown, or unconsidered like urban myths, until they stare you in the face when you are ready for a break – passport denial and revocation.

Could the Secretary of State deny or revoke your passport when you have child support arrears? Yes! Here’s more:

 

How does the Secretary of State deny and revoke passports?

Congress has provided federal funds under Title IV-D to help the States collect child support, but, in exchange, the States must enact federally-prescribed laws to collect support.

These include the passport laws. These laws must, at a minimum, establish a procedure for the State to certify individual support arrears to the Secretary of Health and Human Services (which administers the Title IV-D program) if the arrears exceed a statutory amount. 42 USC § 654. The amount may be $5,000 and as little as $2,5000. The laws must also require the State to notify the non-payor of the certification and afford the non-payor an opportunity to contest the certification with the State. Id. The laws may, in addition, allow the non-payor reprieve for personal, proven hardship, a payment plan, or a support modification. Id.

If the Secretary of Health and Human Services receives a State certification, the Secretary must transmit the certification to the Secretary of State for action.

If the Secretary of State receives a certification, the Secretary shall “refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport previously issued . . . .” 42 USC § 652. Additionally, according to the Secretary of State’s regulations, the Secretary shall not issue “a passport, except for a passport for direct return to the United States . . . [if] the applicant has been certified by the Secretary of Health and Human Services as notified by a State agency under 42 USC § 652(k) to be in arrears of child support in an amount exceeding the statutory amount.” 22 CFR 51.60.

Certified individuals appear on a list in the Passport Name Check System. When the arrears are paid or do not exceed the statutory amount, the State sends a subsequent certification through the chain to remove the payor from the list. Do not make a last minute payment and expect your passport the next day, or even a few days later. Passport processing takes at least two weeks, in addition to the time needed to send notice of the payment to the proper State agencies, the Secretary of Health and Human Services and the Secretary of State. For those who cannot pay, usually, hardship exceptions apply when the applicant’s life or safety is in jeopardy or a passport denial is against the fundamental public policy of the United States (this is a vague standard). Merely wanting to be with a loved one in another country, fly overseas to search for work or go on a trip for a break from stress, however, is not enough.

 

Doesn’t this interfere with my right to travel?

Yes, it does, but that does not end the matter.

While we have a constitutional right to international travel, the right is “no more than an aspect of the liberty protected by the due process clause [that] can be regulated within the bounds of due process.” Haig v Agee, 453 US 280 (1981). By comparison, interstate travel implicates the freedom of association with our brother and sister citizens, which is a First Amendment right “virtually unqualified” and protected by “strict scrutiny.” Id. That difference means that restrictions on interstate travel must be narrowly tailored and the least restrictive means to justify a compelling government interest, whereas restrictions on international travel must be a rational, reasonable means to pursue a legitimate government interest. Some courts require a more exacting standard, somewhere between rational, reasonable review and strict scrutiny (like intermediate scrutiny), but even these courts have held that securing the collection of child support for children is both an important and a substantial government interest.

Every court to decide the issue has held that the passport laws for support arrears are constitutional because there is no automatic right to international travel. As the Ninth Circuit Court of Appeals explained...

[W]ithout violating . . . the freedom to travel internationally, Congress (and the State Department) can refuse to let [the non-payor] have a passport so long as she remains in substantial arrears on her child support obligations. She is free to . . . work or, if she likes, to be a faineant, but the Constitution does not require that she be given a passport. Eunique v Powell, 302 F3d 971 (9th Cir 2002). Considering that enforcement often becomes illusory once the non-payor flees the jurisdiction, the restrictions make sense. Moreover, they are not absolute. The non-payor may pay the arrears, or at least pay them below the statutory amount, may receive a limited passport to return to the United States, and may request a waiver for business and family emergencies.

 

Note: This is Part 2 of a three-part series on passport problems for support non-payors. Click here to read Part 1.


Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.


Comments (1)Add Comment
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I don't understand
written by mitch, April 07, 2013
Please break this stuff down in a way that makes sense to people who are not Lawyers. I dont get what the hell is being explained.

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