Friday, September 30, 2005

Expert Advice Column

No Pay, No International Play
California Lawyer, October 2005, at 22

For those who owe a substantial amount in back child support, traveling internationally may first require a visit to the Family Law Court-and in almost all cases that will be an exercise in futility.

Federal law mandates that a passport will not be issued to an individual who "owes arrearages of child support in an amount exceeding $5,000." (42 U.S.C. § 652(k)(1) & (2); 22 C.F.R. § 51.70(a)(8).) The law creates a two-pronged test: (1) Is the right individual implicated? and (2) If so, does he or she owe more than $5,000 in back child support? If both of those questions are answered affirmatively, the court has no choice but to confirm the findings of the local child support agency.

No Local Authority
One key mistake that moving parties make in these passport cases is to assume that the local child support agencies-dispersed throughout the counties and operated with state oversight-have the authority to issue and release passports. But, in reality, these agencies are under a federal mandate to report all individuals who owe more than $5,000 in child support to the state-and the state in turn must report these individuals to the federal government. (42 U.S.C. § 654(31).)

In other words, the agencies simply have a reporting obligation. For example, if a court were to order the agency to release a child support obligor's passport, it would effectively be ordering the agency not to report the individual. The judiciary has no authority to order the executive not to execute a law unless the law is declared unconstitutional. (Cal. Const. art. 3, § 3.)

No International Travel Right

Another common mistaken belief is that the child support obligor's fundamental right to travel is implicated. However, unlike the right to interstate travel, international travel is not considered a fundamental right. (Zemel v. Rusk, 381 U.S. 1 (1965); Califano v. Aznavorian, 439 U.S. 170 (1978); Haig v. Agee, 453 U.S. 280 (1981).) Thus, "the Government need only advance a rational, or at most an important, reason" for imposing the travel ban. (Freedom to Travel Campaign v. Newcomb, 82 F. 3d 1431 (9th Cir. 1996).)

Passing the test
The passport scheme passes this test. As the Ninth Circuit recently opined, "There can be no doubt that the failure of parents to support their children is recognized by our society as a serious offense against morals and welfare. It is in violation of important social duties and is subversive of good order. It is this very kind of problem that the legislature can address." (Eunique v. Powell, 302 F.3d 971, 974 (9th Cir. 2002).)

Therefore, Congress can decree that a parent's obligations to his or her children "must take precedence over international travel plans." (Eunique, 302 F. 3d at 976.)

The Second Circuit has likewise dismissed constitutional challenges to this scheme. (See, Weinstein v. Albright, 261 F.3d 127 (2001); see also, In re Walker, 276 B.R. 568 (Bkrtcy. W. Dist.Tex. 2002) (filing for bankruptcy will not result in release of passport).)

How Counsel Can Help
Once you have determined that the obligor is in arrears in excess of $5,000, it would be a waste of a client's money, and therefore possibly a violation of ethical duties, to file motions requesting a passport. The court simply has no authority to order the passport released.

The one area in which attorneys can assist their clients is in determining whether an obligor is indeed in arrears on a child support obligation in excess of $5,000. Note that the law requires reporting child support arrears only. For example, if an agency is reporting all of an obligor's arrears, and less than $5,000 is for child support, the agency can be mandated to correct its reporting.

Likewise, if a balance of more than $5,000 is owed for child support arrears, with an additional sum owing for spousal support arrears, the obligor only needs to bring the child support balance below the statutory amount of $5,000 to get a passport released.

This strategy will work given the requirement that child support arrears are to be paid before spousal support arrears. (Cal. Fam. Code § 5238.)

Once these requirements are satisfied, the responsible agency will likely voluntarily release the obligor's passport.