PASSPORT RESTRICTIONS

                                    Contributed by:            
                                    David H. Gill, Esq.
                                    475 N. First St.
                                    San Jose, CA 95112
                                    (408) 279-8707

         This note addresses the Court's power to order impound of a
         passport to assure that noncustodial parent, a naturalized citizen
         with dual citizenship, cannot flee the jurisdiction with the kids.

         FACTS:

         Middle Easter Couple, divorced in Santa Clara County, CA. Mother
         awarded custody of 5 year old boy. Father is a naturalized US
         citizen who travels to Pacific Rim countries on business. Fahther
         owns substantial assets in CA.   During the evaluation process the
         mother express a fear that the F will take their child to his
         Middle Eastern home. The evaluator recommends that the Father be
         required to leave his passport with the Mother's attorney, that
         the Father is to present written evidence from foreign governments
         if he needs visas for business reasons and that when Father has
         his passport, then Father is to have no visitation.

         ISSUES:

              (1) Is there a violation of the 5th Amendment by restricting
              travel?

              (2) Does a California (State) Court have jurisdiction to make
              such an order?

              (3)  Are there any viable alternatives?

         DISCUSSION:

         59A AmJur2d 1015, "Passports":  A passport, even after issuance,
         is the property of the United States.  22 CFR sec 51.9.  The
         Passport Act of 1926 was a valid delegation of authority to the
         Executive (Zemel v. Rusk, 381 U.S. 1 [14 LEd2d 179, 85 SCt 1271]);
         the Secretary of State has been delegated the powers over
         issuance, control of passports (Bauer v. Acheson 106 Fed.Supp
         445).  The Supreme Court narrowly construes all delegated powers
         that curtail or dilute activities or enjoyment, such as travel
         (Kent v. Dulles, 357 U.S. 116 [23 LEd2d 1204, 78 SCt 1113]).
         Passport regulations must be consistent with statute and
         Constitution (Haig v. Agee 453 U.S. 280 [69 LEd2d 640]).

         Question:  Does the Passport Act of 1926 preempts the state's
         ability to restrict?  The right to travel outside the United
         States is a "liberty" secured citizens, is not subject to
         restriction without due process of law under 5th Amend.  (Haig,
         supra; Zemel, supra; many cites) Regulations of the right to
         travel abroad is under the law-making function of congress, and
         the delegation of that function must be acoompanied by standards
         adequate to pass scrutiny, due process.

         Aptheker v.  Secretary of State (1964) 378 U.S. 500 [84 SCt 1659,
         12 LEd2d 992] (all references to 84 SCt pps):  The right to travel
         abroad is "an important aspect of the citizen's 'liberty'"
         guaranteed in the Due Process Clause of 5th Amend (p. 1663);
         Quoting Shelton v. Tucker, 364 U.S. at 448 [81 SCt at 252]:

         [E]ven though the governmental purpose be legitimate and
         substantial, that purpose cannot be pursued by means that boadly
         stifle findamental personal, liberties when the end can be more
         narrowly achieved.  The breadth of the abridgment must be viewed
         in the light of less drastic means for achieving the same basic
         purpose.

         VIABLE ALTERNATIVE:

         In Milne v.  Goldstein (1962) 202 Cal.App.2d 582 [20 CalRptr 903],
         father was South African citizen; married NY, divorced CA; father
         wanted 6 weeks visitation with 2 daughters in South Africa.  Court
         found it was in best interests of daughters to visit father and
         accepted father's proposal:  He was to deposit 50,000 shares of
         stock of $175,000 value in escrow to be delivered to wife if
         daughters not returned; prepared a petition to Supreme Court in
         Johannesburg for modification of decreee, to allow visitation,
         with stipulation that he could not apply to change custody if he
         failed to return children to CA.

         202 Cal.App.2d at p. 596:  "The fact that the parents live in
         opposite parts of the world does not, of itself, deprive the
         children of the benefits afforded by visiting with both mother and
         father." ... "[T]he judgment contains elaborate provisions with
         respect to the manner in which it is to be executed." (i.e., the
         custody order, plus the security, gave mother adequate surety the
         daughters would be returned.)