Source: Divorce Lawyer Blog
GENERAL INFORMATION: Mexico is a federal republic formed by 31 states and the Federal District. A party to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention) since 1991, Mexico is the destination country of the greatest number of children abducted from the United States by a parent. The Hague Abduction Convention provides a civil legal mechanism for parents to seek access to or the return of children wrongfully removed or retained in Mexico.
With respect to child custody, Mexican law distinguishes between parental authority (patria potestad) and custody (guarda y custodia). Patria potestad refers to parents’ responsibilities and rights regarding the child, including the responsibility to care for the child, reside with the child, and provide for the child’s necessities (for example, food, education and development). It also includes the right to correct the child, as well as the right to control and manage any property or rights the child may have.
Absent a court order, parents have equal patria potestad rights and responsibilities to their minor children. In reality, one parent may make all decisions for the child. If parents cannot agree over the exercise of the patria potestad, they may ask a judge to decide which parent makes the decision. If the parents are deceased or unavailable, the paternal grandparents exercise patria potestad; if they are deceased or unavailable, the maternal grandparents exercise these rights.
Most children live with their mothers after divorce. If fathers want the children to reside with them, it is typical that boys will live with the father and girls will live with their mother. At age 14, the child may decide which parent the child wishes to live with.
Mexican Immigration authorities confirm the consent of both parents before allowing any minor of any nationality to leave the country; any parent traveling alone with a minor must present a written statement from the absent parent. Mexican Foreign Ministry officials requires the signature of both parents for children younger than 18 years to obtain Mexican passports.
The Mexican agency responsible for locating missing children is the police authority. Locating missing children can be a challenge in Mexico. The Department of State’s annual Compliance Report on the Hague Abduction Convention details many long unresolved child abduction cases to Mexico for which the children have not been located.
LEGAL SYSTEM: Mexico is a civil law country, which means that court decisions in Mexico are based upon Mexican civil code. In each of the 31 states in Mexico, state law establishes the structure and function of the courts, as well as its own constitution, laws, regulations, and decrees.
Generally, state courts are organized in the following way: the highest appellate court is known as the Superior Court of Justice (Tribunal Superior de Justicia); this court is followed by the Courts of First Instance (Tribunales de Primera Instancia) of ordinary jurisdiction, responsible for hearing civil, criminal and commercial causes. Immediately below, are the minor courts of special jurisdiction, such as the family courts and bankruptcy courts. Family law courts handle divorce and custody cases.
RETAINING AN ATTORNEY: Mexico’s National System for the Comprehensive Development of the Family, known as DIF, (Sistema Nacional para el Desarrollo Integral de la Familia) offers free legal assistance to vulnerable adults and children in Mexico. The system consists of one federal DIF institute, 32 DIF agencies (one for each state and one for the Federal District – DF in Spanish) and 2, 274 municipal DIF agencies. At the state level, the wife of the governor is often the head of the DIF.
A parent does not need to retain private counsel to file a Hague Convention petition in Mexico. The Central Authority of Mexico (Secretaria de Relaciones Exteriores) will, upon receipt of the Hague Convention application, prepare a written communiqué for the court, containing an explanation of the Hague Convention and its objectives. A parent may choose to retain an attorney, however, to follow-up on the case and to provide them with direct information on the status of the case. A retained attorney should contact the Central Authority of Mexico as soon as possible after the application is submitted.
It is important to note that while the Central Authority of Mexico does not represent Hague Convention applicants in court or assign an attorney to take the case, the Central Authority of Mexico will prepare the required documentation to submit the case in court. In Mexico, Family Court judges are authorized to intervene ex-officio in family matters and therefore have the power to enforce their decisions without the involvement of private counsel. Nevertheless, parents in the United States have said that having private legal representation resulted in fewer delays in the application process.
CITIZENSHIP / PASSPORT MATTERS: Children born in Mexico or born abroad to Mexican parents are entitled to Mexican citizenship. Mexican law recognizes dual nationality for Mexicans by birth. U.S. citizens who are also Mexican nationals are considered Mexican by local authorities.
Mexican law requires that any non-Mexican citizen under the age of 18 departing Mexico must carry notarized written permission from any parent or guardian not traveling with the child to or from Mexico. This permission must include the name of the parent, the name of the child, the name of anyone traveling with the child, and the notarized signature(s) of the absent parent(s).
A parent can prevent issuance of Mexico’s passport to their child, because issuance of a Mexican passport to a minor child requires the signed consent of both parents. Mexico does not allow a child to enter on a parent’s passport. The child needs his/her own passport.
Exit Permits: Mexican law requires that any non-Mexican citizen under the age of 18 departing Mexico must carry notarized written permission from any parent or guardian not traveling with the child to or from Mexico. This permission must include the name of the parent, the name of the child, the name of anyone traveling with the child, and the notarized signature(s) of the absent parent(s).