It’s been a long, cold winter. Your divorce was over two years ago, or so you thought. That was when the judge ordered you out of your home, into the home you used to rent to college students (none too careful to patch the holes in the wall from too many games of indoor baseball). That was when the judge ordered you to payoff half of your and your ex-wife’s credit cards (most from her weekly trips to the spa and mall on the expensive side of town). That was when your judge reduced you to a weekender parent (who pays child support like a bottomless ATM or the proverbial money tree). But that was also when you ventured out into the single life, determined to make it on your own, dumpy house and debt and weekend child and all. And for a time, you did.
But this winter was different. You lost your job. Your car broke down. Your ex-wife nit-picked every weekend parenting time. She had an expensive lawyer. You had none. To appease her, you started paying child support directly to her. She hated waiting for her checks in the mail from the State. She promised she and her lawyer “would take care of everything,” so you ignored the past due support notices in the mail. She wouldn’t try to collect, so why worry?
It was time for a break. Yes, a short trip in the sun with the money your parents gave you on your birthday – “Just in case you need it,” they said, eyeing the holes left in your rental home. Maybe you could find a job overseas. You promised yourself you would not spend much, only for the basics. You searched and searched online to find the cheapest prices –- a red-eye flight mid-week, an economy hotel close to the beach, complementary breakfasts with fruit you could stow away for lunch. This would be a pleasant parting from the stress of it all, just for a few days.
But not so fast. The Secretary of State revoked your passport.
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, in the cold of winter 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:
Why passports?
This question is more complex than its two-word simplicity suggests.
As a simple matter, “deadbeat parents” are difficult to reach outside the country. The State court is more likely to find success if these parents remain in the country, within process server and police officer reach. But the same is true if the court just sent these parents to jail, whether or not they had passports. Why should the federal government have the power to tamper with their passports, too?
That is a question of complex federal law. As we learn in civics class, our federal government has only the powers granted in the Constitution, and all others remain to the States. One of those State powers is the power to make and enforce domestic relations orders, like child support orders, and another is the power to make and enforce criminal laws, like felony non-support laws. See, e.g., United States v Mussari, 95 F3d 787 (9th Cir 1996). Then what federal interest is there? Money. As the Ninth Circuit Court of Appeals explained,
Congress also has financial concerns because unsupported children must look to the public fisc, including the federal treasury, for financial sustenance. That was the impetus for the enactment [of the passport laws] . . . . Surely it makes sense to assure that those who do not pay their child support obligations remain within the country, where they can be reached by our processes in an at least relatively easy way.
Eunique v Powell, 302 F3d 971 (9th Cir 2002). Therefore, there is at least a reasonable fit between the federal government’s interests and the passport laws. Id.
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.
Shouldn’t I get a hearing before the Secretary of State denies or revokes my passport?
Yes, and you do.
While international travel is a “liberty interest” and the government may not deprive an individual of property or liberty without due process of law, all that due process requires is notice and an opportunity to be heard commensurate to the circumstances. The government must provide “notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v Central Hanover Bank & Trust Co., 339 US 306 (1950). The opportunity to be heard need not be before the action or before every body that takes action.
The passport laws limit the non-payor’s opportunity for federal review. However, “there is no authority [for] the contention that due process can only be satisfied if a federal agency rather than a state or city agency provides the notice and hearing.” Weinstein v Albright, 261 F3d 127 (2d Cir 2001). Instead, the passport laws require States to provide notice and an opportunity to be head before the State agency before the State certifies the arrears to the Secretary of Health and Human Services. All courts deciding the issue have held that this framework assures the non-payor a meaningful opportunity to be heard because the State, not the federal government, has the power to determine the actual amount of arrears, retroactively modify arrears, conditionally waive arrears or otherwise grant remedial relief in lieu of certifying the arrears for passport revocation or denial. Indeed, the passport laws reduce the federal government to a ministerial role. Id.
Therefore, requiring the federal government to also provide the non-payor with a hearing would be futile. Instead, the non-payor must address arrears with the State agency handling them. And promptly, too.
What can I do if my passport is denied or revoked?
What can a support non-payor who cannot obtain a passport do? Here are some suggestions:
Motion to Reduce Child Support: If you cannot pay the current amount, consider filing a motion to reduce it. The standards and procedural requirements vary by State, but, in general, parents who genuinely cannot afford to pay (e.g., have lost a job) will receive a reduced amount or a long-term payment plan. You may even request to have your arrears reduced or discharged. Be sure to request that the court enter an order clearly stating how much in arrears (below the passport statutory amount) you owe, and be sure to send that order to the appropriate person(s) for a new certification to remove your name from the Passport Name Check System. Contact an attorney in your area for information about the rules applicable to you.
Three Year Support Review: By federal law since 1996, States receiving federal assistance must have child support review procedures to review orders every three years upon a payor’s or a payee’s request. In Michigan, where I practice, support payors and payees have a “one time pass” every three years to ask the Friend of the Court to review their current child support order. All they need to do is send a letter to the Friend of the Court to request it. Contact the court or child support administrator for your case to find out how your jurisdiction conducts these reviews Be cautious, however, because incremental differences may not be enough to modify the current order (in Michigan, we need at least 15% deviation), and you could end up paying more support if your ex-spouse’s income has deceased more than yours.
Have a Frank Settlement Discussion. Explain your financial predicament to your ex, sincerely and in depth. Ask for a settlement at an amount you can afford to pay, and explain that any other higher amount will force you into bankruptcy (if true). Support obligations are non-dischargeable in bankruptcy, and your ex may be left with a bankrupt payor who is not paying anything at all if you do not settle at a reasonable amount. Be sure to reduce any settlement to a written order, with the court’s approval and abiding all court rules and statutes for entering settlement agreements.
File a Grievance: If your child support agency simply has the records wrong, contact the State support administration and ask for grievance forms. These forms allow you to report the local child support administrator for handling your file poorly. You will not receive an extra financial benefit (e.g. money for your pain), but you will put the State on notice of the errors in your file.
File a Lawsuit: Beware, this option will not work in all States. If you paid support but your ex did not report it, consider a lawsuit or motion against her for fraud, misappropriation of funds, contempt of your child support order, credit against your arrears, or something similar. You will need to speak to an attorney who practices in your State to learn what options are available.
Whatever you do, do not let those arrears build up, and do not trust that your ex-spouse will “waive” support. The State certifies arrears, and the federal government denies and revokes your passport, no matter what your ex has to say, and no matter how desperately you want a break or how cheaply you can do it. If you wait, you could be out in the cold with no passport, scraping for cash to pay down arrears with penalties for a very, very long time - no vacations included.