The right to travel, passport confiscation and child support? 

Can a court take a passport to enforce child support?  The answer may surprise you.


Every U.S. citizen has a fundamental right to travel.  The fundamental right to travel was first addressed by the Supreme Court in 1920 in the landmark case of United States v. Wheeler 254, U.S. 281 (1920) when the Court held that:

[T]he fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress and egress therefrom.”  Id. at 293.  

In 1966, the United States Supreme Court further developed its travel jurisprudence when it held that interstate travel “occupies a position fundamental to the concept to the Federal Union.  It is a right that has been firmly established and repeatedly recognized.”  United States v. Guest, 383 U.S. 745,757 (1966).

The Supreme Court expanded on the right to travel in the case of Shapiro vs. Thompson, 394 U.S. 618 (1969) in holding:

This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules or regulations which unreasonably burden or restrict this movement.  Id. at 629.

In Kent et. al. v. Dulles, Secretary of State, 357 U.S. 116 (1958), the Secretary of State withheld a passport of a U.S. citizen premised on the notion that he was a communist.  The U.S. Supreme Court held:

To repeat, we deal here with a constitutional right of the citizen, a right which we must assume Congress will be faithful to respect. We would be faced with important constitutional questions were we to hold that Congress by § 1185 and § 211a had given the Secretary authority to withhold passports to citizens because of their beliefs or associations. Congress has made no such provision in explicit terms; and absent one, the Secretary may not employ that standard to restrict the citizens’ right of free movement.  Id. at 130.

A party’s constitutionally protected right to travel can only be infringed upon if there exists a compelling state interest. Jones, 452 U.S. at 415-16.

The United States Supreme Court has consistently applied strict scrutiny to any law that limits a fundamental right.  Think about the fundamental right of free speech.  A court cannot limit free speech unless there is compelling governmental interest in doing so.  The most common example is yelling fire in a crowded theater.  The freedom of speech is tempered by the rights of the individuals in the crowded theater.  In simple terms, yelling fire in a crowded is not protected by the first amendment.

The child support exception . . . 

The 9th Circuit held in Eunique v. Powell 281 F3d 940 (2002) a narrow exception to this rule in child support cases.  Eunique argued that there was an insufficient connection between her breach of the duty to pay for the support of her children, and the government’s interference with her right to international travel.   The Court of Appeals held that international travel required a lower scrutiny, rational basis when commerce is not involved in holding that:

“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.”  Id at 945.  The Court of Appeals drafted a narrow exception that the joys and benefits of international travel are outweighed by the need to support one’s child first.

            So yes, a court can take a passport to enforce child support. 

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