WAS YOUR PASSPORT DENIED WITHOUT YOUR RIGHT TO DUE PROCESS?

Kenya N. Rahmaan
You would be hard pressed to find anyone residing in the United States who has not dealt with child support or, at the very least, heard of the child support system. Whether paying or receiving, most involved with the system are more than familiar with the punishments that are enforced when payments are not made by their assigned due dates. There are late fees and interest, as much as 12% in Kentucky and a few other states, when the due date turns into a past-due date. All are too familiar with child support enforcements such as income garnishments, license suspensions, and even incarceration. But there is another enforcement tool that often goes ignored because it may seem less important to many and that is the denial or revocation of passports.

The Passport Denial Program was implemented under Section 370 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) passed in 1996. According to the Office of Child Support Enforcement (OCSE), The Social Security Act (SSA), subsection 452 (k), effective 1997, established the denial, revocation, or restriction of U.S. passport remedy. When first enacted, a non-custodial parent must have been found to owe at least $5,000 in child support arrears or debt. The amount was decreased after the Deficit Reduction Act (DRA) was signed in February of 2006. Effective October 1, 2006, Section 452 (k) of the SSA (42 U.S.C. 651 et seq) as translated by the OCSE (2006) was amended to reduce the arrears amount that triggers a passport denial from $5,000 to $2,500. It is important to note that since the Passport Denial Program was modified by the DRA, there has been no other changes to the program either by the states or the Federal OCSE.

As described in Section 452 (k) of the SSA, specific criteria must be followed before the name of the non-custodial parent can be forwarded to the OCSE, who in turn notifies the Department of State (DoS) to revoke or deny the passport. This criteria is in place for a very specific reason, as it is to protect the right to due process for the non-custodial parent. Specifically, according to Section 454 (31), the following actions must be taken by the state BEFORE the name of the non-custodial parent can be forwarded for passport denial or revocation. As written on SSA.gov:

‘A state plan for child and spousal support must provide that the state agency will have in affect a procedure for certifying to the secretary determinations that individuals owe arrearages of child support in an amount exceeding $2,500 under which procedure- A. each individual concercerned is afforded notice of such determination and the consequences thereof, and the opportunity, to contest the determination.’

A Pre-Offset Notice or (PON) must be issued before certain punishments can happen in regards to debt collections. According to the Administration of Children and Families (ACF) (2012), PONs must be issued for all new cases within the Federal Tax Refund Offset Program, Administrative Offset Program, and the U.S. Passport denial program. In addition to the PON requirements, states must decide, annually, whether they will be responsible for issuing the PONs or if they want the OCSE to issue the notices. The Annual Certification Letter, which includes critical information about how the states are ensuring that the Federal guidelines are being followed when offsetting tax refunds or denying/revoking, is supposed to act as an accountability tool for OCSE.

The Annual Certification Letter must be submitted by states to verify that every case they submit to OCSE, and any PONs they may issue, meets the Federal legal requirements, (ACF, 2012). When there are so many reports of passport denial/revocations and notifications only being made after applications have been submitted, there seems to be a missing link in the process. There must be an investigation into this practice immediately. Once again, there is a desperate need for all state child support agencies and the Federal OCSE to be audited and held accountable for the laws that may have been broken while executing the enforcements of the child support system.

The right for a parent to be notified before action of enforcement is executed against him or her is not new procedure. Even with license suspensions, the agency must notify the non-custodial parent. For example, in Florida, the obligor has 30 days after the second notice to pay owed child support or reach an agreement to pay delinquency, (National Conference of State Legislators (NCSL), 2014). Florida appears to follow the mandate concerning issuing notification prior to passports being denied/revoked as well.

The Florida Department of Revenue (DOR) reports that before a passport application is denied, a notice is mailed to the parent who owes explaining passport denial and how to request a hearing to contest. Unfortunately, several Floridian parents have surfaced declaring that they were only notified of the passport denial AFTER they had applied for the document. After the denial, none had their documents or fees returned. They were told that the only way have the passport reinstated was to pay the debt, in full, in order to bring the arrears to zero.

A question that must be raised after the PON has been mailed to the non-custodial parent is whether or not the address on file is a current address for that parent. With other court documents, such as child support complaints or a request for a modification, there is a requirement for proof of service. According to USLegal, proof of service is a document or court paper filed in a Court as evidence to show that process has been successfully served on a party or a witness in a lawsuit. While the PON is not a ‘court’ paper, there should be some type of verification process to prove that the intended party did, in fact, receive the PON. In passport denial/revocation cases, there does not appear to be any type of proof of delivery program in place by the states prior to the names being forwarded to Washington D.C.

The ACF (2012) does mention that the Annual Certification Letter is one that is supposed to ensure that the Director of the respective child support agency is following the Passport Denial Program mandates exactly. The language, in an example provided by the ACF (2012) is clear that the following is supposed to happen in every case before it is referred to OCSE for passport denial/revocation:

  • The amount of the child support and or spousal support arrearage owed by the individual exceeds $2,500.

  • The agency has verified the accuracy of the arrears, has a copy of the payment record, or an affidavit signed by the custodial parent attesting to the amount of support owed.

  • The Pre-Offset Notice that we will issue to the non-custodial parent meets requirements set forth in section 454 (31) of The Act or the address information for the non-custodial parent was verified for the notice that OCSE issued.

The amount to trigger the denial/revocation process is ridiculously low at $2,500 considering that almost every state is permitted to charge the non-custodial parent retroactively for the age of a child. This is common even when a father (sometimes non-biological) has never been notified of the existence of the child. This is also common is cases where non-custodial parent has been financially supporting their child by paying child support directly to the custodial parent without a court order. And suddenly the custodial parent decides to file a child support order against the other parent. This is one of the primary reasons that so many men begin their relationship with the child support agency deeply indebted to their ex or to the system.

Secondly, because so many relationships that involve child support enforcement are often tumultuous, bitter, and filled with negative emotions, affirmation from the custodial parent regarding child support in any way, let alone payments and punishments, could possibly be unreliable and untruthful information. Any disgruntled parent could sign an affidavit stating that they were owed a million dollars if it meant that the non-custodial parent would be punished all while being promised the possibility of reaping a financial benefit. It is unreasonable to depend on the word of a person that can be described as an enemy to sign an affidavit that can determine life altering outcomes for another person. Likewise, the government should take extreme caution when granting a person that type of responsibility.

The next requirement of The Annual Certification letter is one that is not only pivotal to the process but one that is most likely ignored or inaccurate when and if the information is provided. The PON is critical in that the non-custodial parent has the opportunity to deny the amount that he/she is accused of owing and many times the total amount of arrears has been over exaggerated. This is the reason that every parent accused of owing any amount of child support debt, should demand an itemized statement in order to verify every penny being charged in their child support case. Additionally, requesting and receiving a payment record from local child support agencies to verify child support debt for any reason, more often than not, results in the non-custodial parent being ignored and the request going unfulfilled. It should be a mandatory guideline that agencies provide account statements annually so that both parents can verify that the amount on their case is accurate.

Finally, the Social Security Administration makes it law that the non-custodial parent receive a PON, before their passport is denied or revoked. So many instances have proven that child support agencies, local, state, and Federal, are ignoring the guidelines and laws that have been mandated in order to effectively and efficiently operate the child support system. For example, there is a soldier stationed in Europe cannot fulfill his mission of traveling around the world protecting a high ranking general simply because his passport has been revoked due to allegedly owing child support debt. According to the soldier, he did not receive proper notification before the revocation which means that his right to due process has been violated. Not only can he not fulfill his duties, he cannot return to U.S. in order to visit his children. The only remedy offered, pay your child support debt in full.

Tens of thousands of parents are being denied their right to due process, whether dealing with license suspensions, incarceration, and/or passport denial. Supporters of the Passport Denial Program state that parents seeking a passport should not be able to travel overseas anyway, suggesting that they must be ‘rich and vacationing’. In reality, many non-custodial parents need passports to visit sick and dying relatives or to work abroad. It is time to quash this myth and force the overseers of the child support agencies to adhere to the rules and laws that have been implemented.

There is a right to due process in this country and there is a right to defend yourself against your accuser. No, passport denial is not the same as a criminal or civil complaint, however, the law states that a non-custodial parent must be notified prior to any actions relating to their passport being revoked or denied. Non-custodial parents have a right to contest the accusations being charged against them, most importantly, and in this case, disputing the amount of debt that they allegedly owe to their ex or to the state. The time has arrived where we must stop allowing child support agencies to get away with violating The Constitution and the laws of the land.

References:

Collection of child support through federal income tax refund offset, administrative offset, and passport denial. (1998, July 6). Retrieved from https://www.acf.hhs.gov/archive/css/resource/federal-income-tax-refund-offset-administrative-offset-passport-denial

Administration for Children and Families. (2006, March 7). Child support provision in the deficit reduction act of 2005. Retrieved from https://www.acf.hhs.gov/css/resource/child-support-provision-in-the-deficit-reduction-act-of-2005-dra
Administration of Children and Families. (2012, December 10). Federal offset program. Retrieved from https://www.acf.hhs.gov/sites/default/files/ocse/fop_user_guide.pdf
Administration of Children and Families.Retrieved from https://www.acf.hhs.gov/sites/default/files/ocse/at_10_04a.pdf

Florida Department of Revenue. (n.d.). Florida dept. of revenue – Passport denial. Retrieved January 30, 2019, from http://floridarevenue.com/childsupport/compliance/Pages/passport_denial.aspx
Social Security Administration. (2018, February 22). Social security act §454. Retrieved January 30, 2019, from https://www.ssa.gov/OP_Home/ssact/title04/0454.htm#act-454-31

Social Security Administration. (2018, February 22). Social security act §452. Retrieved January 31, 2019, from https://www.ssa.gov/OP_Home/ssact/title04/0452.htm#act-452-k

US Legal, Inc. (n.d.). Proof of service law and legal definition | USLegal, Inc. Retrieved January 30, 2019, from https://definitions.uslegal.com/p/proof-of-service/