International Parental Child Abduction

Mexico

DISCLAIMER: The information in this circular relating to the legal requirements of a specific foreign country is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.

GENERAL INFORMATION: The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") came into force between the United States and Mexico on October 1, 1991. Therefore, Hague Convention provisions for return would apply to children abducted or retained after October 1, 1991. Parents and legal guardians of children taken to Mexico prior to October 1, 1991, may still submit applications for access to the child under the Hague Convention in some cases.

Mexico is a federal republic formed by 31 states and the Federal District. It has no specific federal legislation for implementing the Hague Convention; rather, it is implemented under existing Mexican state law. Each state has an independent judicial organization empowered to apply and interpret the laws of that state. The judiciary in each state is headed by a Superior Court of Justice and contains civil, family, and criminal judges. It is the family judges who have jurisdiction for resolving problems concerning custody, rights of access, and child abduction based on the laws of that state. They are the judges, therefore, that will receive and rule on the Hague Convention cases.

Mexico has established a Central Authority charged with applying the procedures of the Hague Convention by working with state authorities. The Mexican Central Authority is part of the Secretaria de Relaciones Exteriores, or foreign ministry, and is responsible for cases of children taken from and taken to Mexico. Involvement of specific offices varies from state to state. The Central Authority generally coordinates its work through the offices of Desarollo de Integral de la Familia (DIF)-similar to offices of family services in the U.S.-in most states. Cases may also involve the state prosecuting attorney's office.

The Mexican Central Authority 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. The special circumstances of the specific case and its possible solution are also outlined for the court.

The first step in a Hague Convention case in Mexico is to confirm the location of the child. The judge having jurisdiction over the case will be the judge serving the area where the child is living. A case cannot move forward in the judicial system until the child's location is known. If an application contains a known address for the child, the Mexican Central Authority will forward the application to the Superior Court of Justice of the state where the child is thought to be residing. That office will then assign it to the specific judge.

When no specific address is known, the Mexican Central Authority submits a request to the appropriate police authority for them to locate the child. This can be a time consuming process and can cause significant delay in the processing of your case. Therefore, the most complete information available concerning the location, or possible location, of your child should be included in the application.

Once the case is with the court, the judge sets the schedule for the rest of the case. Generally, the family judge will encourage the taking parent to voluntarily return the child. If the taking parent refuses, the judge is able to order the parent from leaving or taking the child (or both) from the jurisdiction of the court until the Hague Convention case is finished. The procedures vary slightly from state-to-state, but generally the taking parent is notified of the date and time of a court hearing for the case. The amount of notice that must be given varies, but is usually at least 24 hours; this notice is required by law. Whenever possible, at the time the notice is provided to the taking parent, the child is taken into the custody of the DIF and resides in a facility managed by the state until the case is resolved.

The Mexican Central Authority is notified in advance of the hearing date and time by the judge's office. If possible, it is important for you to attend the hearing. After hearing those parties present at the hearing, the judge will issue the order of return (or denial of return). This order is usually effective immediately, so if you are at the hearing and return is ordered, you might be able to leave with the child. Generally, the judge will order that the child be turned over to the Central Authority for coordination of the logistics of the return.

Please Note: Submit your completed, signed application as soon as possible. Do not wait to get a custody order to begin the application process. A custody order issued after the taking or retention (a "chasing order") is not relevant to your Hague case and may, in fact, complicate it.

INSTRUCTIONS: To apply for assistance under the Hague Convention in Mexico, you will need to submit the following:

1) The U.S. Central Authority application form. This form may be obtained from the Office of Children's Issues or downloaded off of our web site. Please refer to Appendix 2 of the of the U.S. Central Authority's brochure, "International Parental Child Abduction" for instructions on completing the application form.

2) Originals or certified copies of the child/ren's birth certificate(s), your marriage certificate, and divorce decree, as appropriate.

3) A certified copy of the custody order in effect when the child was taken to Mexico or a copy of the state law that establishes your right to custody, and any agreements regarding custody or access. Note: It is not necessary to have sole custody to apply for assistance under the Hague Convention. If no custody order exists, and your state's laws are silent as to a parent's right of custody, an affidavit of law from an U.S. attorney may be acceptable.

4) Photos of the child and of the taking parent. These photos will not be returned to you.

5) Translations into Spanish for all English-language documents, including the application and any extra pages attached to the application.

Please refer to the attached checklist for guidance in preparing your application.

Please remember:

• All documents should be typed or very clearly printed in black ink, but should be signed in blue ink. The English and Spanish language applications submitted must clearly have an original signature.
  
• Fill out the Hague application as completely as possible. The physical descriptions of the taking parent and child (Parts I and III) are especially important, and should be completed regardless of the existence of accompanying photos. Also important is your explanation of the circumstances leading up to and surrounding the child's removal from the United States (Part IV on the application). In cases where the child has been gone for a few months or more, your statement -which can be done on a separate piece of paper-should be as detailed as possible regarding any actions you have taken to recover the child in the interim.
  
• If you are concerned that the taking parent will flee or hide the child when notified of the proceedings, it is very important that you note this and state the reason for this concern in section VIII of the application or on a separate page. You may attach an additional sheet if needed.
  
• There is no fee to file a Hague application in Mexico.
  
• Incomplete applications cannot be submitted to the Mexican Central Authority, as they are unable to take action on them.

LEGAL COUNSEL: You do not need to hire a private attorney to have your case processed. While the Mexican Central Authority will not assign an attorney to take charge of the case, they will prepare the documents needed to submit the case to the judge. Family judges in Mexico are authorized to intervene ex-officio in matters involving family and have the power to enforce their decisions, so a private attorney is not required.

You may choose to do so, however, to follow-up on the case and to provide direct information on the status of the case. If you hire an attorney, he/she should contact the Mexican Central Authority as soon as possible after the application has been submitted. Some parents have felt that having a private attorney resulted in less time delays in the application process.

TIME FRAME: Time delays can be a problem in Hague Convention cases in Mexico, especially when the location of the child is not known. Once a case has been sent to the court, the case is completely under the control and jurisdiction of the judge as to the time schedule. Once a case has been decided, however, enforcement of the decision is generally swift.

APPEALS: In Mexico, decisions on Hague applications may be appealed by either party, which may delay enforcement of a decision. The parent must, however, hire a private attorney in order to file an appeal. You should consult directly with your Mexican attorney regarding the appeal procedures.

In addition to the right to appeal a decision in a Hague case, there is a special appeal available in the Mexican judicial system called an amparo. An amparo is a claim that a constitutional right has been violated by a government agency or a government process. When there is an amparo filed in a case, all action ceases until the amparo has been ruled on-often many months later. An amparo can be filed at any time during the case, so the case can be stayed even before a judge can rule. Decisions on amparos can be appealed, further delaying action by the judge. Several cases have been delayed for years while amparos and appeals of decisions have blocked the case.

NON-HAGUE CIVIL REMEDIES: You may also seek recognition of an U.S. custody order in the Mexican courts. This process takes several months and you will need the services of a Mexican attorney. Please note the Mexican courts are not required to recognize a foreign court order.

You may also seek custody through the Mexican court system. You will need the services of a Mexican attorney.

The non-Hague civil remedies noted above may be pursued in conjunction with your Hague application. The filing of a Hague application for return of a child, however, should result in a stay of any custody proceedings pending the outcome of the Hague hearing.

CRIMINAL REMEDIES: For information on possible criminal remedies, please contact your local law enforcement authorities or the nearest office of the Federal Bureau of Investigation. Information is also available on the Internet at the web site of the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention at http://www.ojjdp.ncjrs.org. Please note that criminal charges may complicate a Hague Convention case. Contact the Mexico officer in the Office of Children's Issues for specific information.

The completed Hague application with supporting documents should be submitted to:

(* As of April, 2002 the State Department is experiencing considerable delays of at least three to four weeks in the delivery of regular mail due to mandated irradiation against harmful substances. We strongly recommend that Hague application packages be sent by courier such as FedEx, DHL, Express Mail, etc. to ensure prompt delivery.)

Tel: 202-736-7000 (Recorded information, access to officers) or 202-736-9090 Fax: 202-312-9743 Internet: children's_issues.html

You may submit your application directly with the Central Authority listed below. If filing directly, you must send a copy of your application and supporting documents to the U.S. Central Authority.

Should you have any questions, please contact the Office of Children's Issues or the Central Authority of Mexico.

The State Department has general information about welfare visits, hiring a foreign attorney, service of process, enforcement of child support orders, and the international enforcement of judgments, which may supplement the country-specific information provided in this flier. The toll-free number, 1-888-407-4747, is available from 8:00a.m. to 8:00p.m. Eastern Standard Time, Monday through Friday (except U.S. holidays). Callers who are unable to use toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling 1-317-472-2328.

In addition, the State Department publishes Consular Information Sheets for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. When situations in a country are sufficiently serious, the State Department issues Travel Warnings that recommend U.S. citizens avoid traveling to that country. These documents are available on the Internet at http://travel.state.gov.

New Law on Passport Applications for Minors: On July 2, 2001, The Department of State began implementation of the new law (Section 236 of P.L. 106-113) regarding the passport applications of minor U.S. citizens under age 14. Under this new law, a person applying for a U.S. passport for a child under 14 must demonstrate that both parents consent to the issuance of a passport to the child or that the applying parent has sole authority to obtain the passport. This law covers passport applications made at domestic U.S. passport agencies in the United States and at U.S. consular offices abroad. Exceptions to this requirement may be made in special family circumstances or exigent circumstance necessitating the immediate travel of the child. The purpose of the new requirement that both parents' consent be demonstrated is to lessen the possibility that a U.S. passport might be used in the course of an international parental child abduction.

Children's Passport Issuance Alert Program (CPIAP):
Separate from the two-parent signature requirement for U.S. passport issuance, parents may also request that their children's names be entered in the U.S. passport name-check system, also known as CPIAP. A parent or legal guardian can be notified by the Department of State's Office of Children's Issues before a passport is issued to his/her minor child. The parent, legal guardian or the court of competent jurisdiction must submit a written request for entry of a child's name into the Passport Issuance Alert Program to the Office of Children's Issues. The CPIAP also provides denial of passport issuance if appropriate court orders are on file with the Office of Children's Issues. Although this system can be used to alert a parent or court when an application for a U.S. passport has been executed on behalf of a minor, it cannot be used to track the use of a passport. If there is a possibility that your child has another nationality you may want to contact the appropriate embassy or consulate directly to inquire about the possibility of denial of that country's passport. There is no requirement that foreign embassies adhere to U.S. regulations regarding issuance and denial of passports. For more information contact the office of Children's Issues at 202-736-9090. General passport information is also available on the Office of Children's Issues home page on the Internet at children's_issues.html.

HAGUE APPLICATION CHECKLIST: MEXICO

____ Application form - signed original, one for each child

____ Original or Certified Copy of Marriage Certificate (if applicable)

____ Original or Certified Copy of Birth Certificate of each child

____ Original or Certified Copy of Divorce Decree (if applicable)

_____ Evidence of custodial right

• Original or Certified Copy of Custody order, or
  
• Copy of state statute, or
  
• Affidavit of law regarding presumption of custody under state law, or
  
• Article 15 determination by state court.

____ Photograph of taking parent and child

____ Statement regarding circumstances of removal or retention (included on application and additional pages as needed)

____ Translations of all documents, including the application, into Spanish. Simple translations are sufficient for most documents. However, if court documents are included, the entire court order must be translated and the translation should be certified.

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