Mexico

How can you prepare child relocation from or within Mexico? What if your child has been relocated without your consent?

Here is a brief guide for helping you navigate through the stormy waters of child relocation in Mexico, where children under the age of 18 years are considered minors, and thus subject to “Patria Potestad” (that is, under the paternal authority, custody, guardianship, care and protection) of their parents (or sometimes, the grandparents).

Any change of residence or relocation of the minor child will require that all holders of the Patria Potestad (ordinarily, both parents) consent to the relocation, whether domestic or international.

If one of the parents refuses to consent the relocation, the parent intending to change the residence of the child will need to obtain from the Courts an authorization to relocate.

Any relocation that has not been consented by a holder of Patria Potestad and authorized by the Courts, may be considered wrongful, and thus, subject to reversal by a Return Order.

For dealing with the international abduction of children, Mexico has signed the year 1980 Hague Convention on the Civil Aspects of International Child Abduction, and the year 1996 Inter-American Convention on the International Return of Children.

Both international conventions seek the exact same purpose: to protect children internationally from the harmful effects of their wrongful removal or retention, and to ensure their prompt return to the place of their habitual residence, as set forth in the preamble of said Hague treaty.

Country Reporter:

Alfonso Sepúlveda García

Alfonso specializes in complex domestic and cross-border litigation and dispute resolution..

He is a member of the International Academy of Family Lawyers (IAFL).

Alfonso has volunteered to keep this page about Mexico up to date.

Lawyers and mediators in Mexico

We provide a list of lawyers and mediators in Mexico who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.

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Parental authority: Mexico

The Mexican Federal Constitution (the “CPEUM”) is the Supreme Law of our country (CPEUM article 133).

The international conventions and treaties signed by Mexico are automatically incorporated, by reason of Law, into our Legal System, having such instruments the same level of hierarchy, validity and binding effect as those of our Federal Constitution (CPEUM article 133). Such conventions apply in the 32 states (“federated entities”) that conform the Mexican Republic.

Family Law is a matter of state law (CPEUM articles 4, 73-XXIX-P, and 124), and is mainly governed by the provisions of the relevant state´s Civil Code, or when existent, by the state´s Code for Family Matters.

Mexico is a Civil Law country, with legal concepts having their remote roots in Roman, Spaniard and French Law.

Patria Potestad is one of such concepts that stems from ancient Roman Law. It is a unique sort of parental authority with its own cultural and legal peculiarities.

Patria Potestad
In Mexico, children under 18 years of age are considered minors and, by reason of birth or filiation, subject to the Patria Potestad of both of their parents.

When the child has no parents, the Patria Potestad will pass on to the child´s grandparents, either maternal or paternal, depending on which are better fit for taking such set of responsibilities.

Patria Potestad encompasses a series of rights, obligations, duties and responsibilities for the care and protection of the person and assets of minor children.
Patria Potestad is a matter of public policy and thus cannot be relinquished nor waived. Its purpose is to care and provide the minor child with:

• A place to live.
• Economic support.
• Education (at home and school).
• Physical, mental, moral, and spiritual health.
• Legal representation, in and out of Court.

When a parent´s reckless conduct(s) threatens to affect the health, morality, well-being, or security of the child, the Patria Potestad rights (but not the obligations and responsibilities) of such parent can be suspended or even terminated by the Courts.

Patria Potestad has its source in the filial relationship, and can stem from:

• The child born from a couple (whether married or not).
• The child adopted by a couple (whether married or not).
• The child adopted by a single parent.
• The child born from assisted reproductive technology.

Patria Potestad after separation or divorce
Patria Potestad will not be shifted, modified, nor affected by the divorce or separation of its holders (namely, by the parents of the child).

The parents may validly agree on who of the two, after they separate or divorce, will be living with their child on a daily-basis “bajo el mismo techo”/“under the same roof”, and who, in turn, will be visiting or picking-up and taking the child with him/her for several hours a day, or for certain days of the week, or during certain weeks, weekends, special occasions, celebrations, vacation periods, etc.

Simply put, and as a matter of fact, the child will be spending more time with one of the [separated] parents, living daily with such parent, and sharing with the latter the “same roof”.

This parent, with whom the child will be living most of the time, is the one trusted with the “guarda y custodia” (meaning with the physical possession) of the child.

Regardless of which parent is trusted with the daily physical possession (the “guarda y custodia”) of the child, both parents will continue having the Patria Potestad until their young son/daughter reaches 18 years of age.

Consequently, and since the Patria Potestad cannot be waived nor relinquished, both parents will need to consent or acquiesce to the relevant and most important decisions concerning the child´s life, among others:

• The place of residence.
• Health and medical care services.
• Education and schooling (including curricular and extracurricular activities).
• Religion and spiritual life.
• Traveling (domestically and internationally).

According to the binding precedents issued by the Highest Mexican Courts, there is no valid prejudiced or statutory preference on which of the two parents is to be trusted with the daily physical possession of the child (“guarda y custodia”), even if the subject minor is an infant.

Therefore, if the parents do not reach an agreement on who is to be trusted with the “guarda y custodia”, the matter will need to be brought to the attention of the Court for Family Matters who, based on the circumstances surrounding the case, will determine whatever is best for the subject child.

In that regard, Mexican Law recognizes the fundamental rights of no discrimination and equal rights between all individuals (CPEUM articles 1 and 4), principles also set forth in article 2 (no discrimination) and article 3 (protection of the best interests of the child) of the 1989 New York Convention on the Rights of the Child.

Take notice: as can be concluded from the above description of “guarda y custodia”, such concept of Mexican Law is a different thing from what in English terminology is called “custody”.

Therefore, from a legal standing point, the word “custodia” should not be unqualifiedly translated to English as “custody”, because the two have a different meaning, treatment, and scope of juridical effects.

Unfortunately, the “official/certified” Spanish-English legal translations that erroneously equalize certain sound-alike words such as those of custodia and custody have often caused extensive and costly crossborder litigation.

Such was the situation in the Whallon v. Lynn (US-Mexico) child abduction case, that back in year 2000, generated a relevant precedent from the United States Court of Appeals for the First Circuit.

The Whallon v. Lynn US precedent (Whallon v. Lynn, 230 F.3d 450) is a useful document for the better understanding of the Mexican legal concept of Patria Potestad.

Traveling with children: Mexico

If a parent wants to travel with the minor child, either domestically or internationally, such parent, by reason of the Patria Potestad, will be needing the permission of the other parent.

Any agreed restrictions and/or stipulations concerning traveling with minors are commonly recorded in the arrangements (“acuerdos” or “convenios”) that, when separating or divorcing, the parents of minor children need to execute and submit for the review, consideration, and/or approval by the Mexican Courts.

Such Court´s approval can only be obtained when such arrangements or agreements do not violate the applicable provisions of Mexican Family Law, which are considered a matter of Public Policy.

In reality, and unless a parent obtains a governmental travel alert to restrict or to stop a minor child from leaving Mexico with the other parent, it is feasible, although wrong, for one of the parents to remove the child from Mexico.

Wrongful removals often occur when the parent who has been trusted with the physical possession (the “guarda y custodia”) of the minor, has also been trusted with keeping the passport, visas, and any other travel documents of the child.

Child relocation: Mexico

Court order
If a parent wishes to relocate with his/her minor child, either domestically or internationally, such parent, by reason of Patria Potestad, needs the consent or permission of the other parent.

If such consent is refused, the matter will need to be decided by the Courts, who may approve or deny the requested relocation based on the circumstances surrounding each case.

Unfortunately, oftentimes the trial Courts are slow when deciding disputes concerning the relocation of children, and even slower when the sought relocation implicates the child moving to another country.

Such disputes are normally handled at the trial and appellate levels by the state Courts and not by the Federal Courts, although Family Law disputes will usually reach the Federal Courts at some conclusive stages of the Mexican judicial review process to analyze potential violations of the fundamental rights of the parties (“amparo” proceedings).

The Court with jurisdiction to handle a relocation dispute will usually be a Court specialized in Family Law, the one seated in the place where the minor child has his/her habitual residence.

Since each Mexican state has its own trial and appellate Courts, the Courts of some states are less efficient and slower than others in the handling of relocation cases.

To try to avoid extensive litigation in a relocation case, I would highly recommend the parent intending or needing to relocate, to conduct all necessary efforts to get the free will/voluntary consent of the other parent for the relocation.

Child abduction: Mexico

International Conventions for the International Restitution of Children.
As indicated before, Mexico has signed the year 1980 Hague Convention on the Civil Aspects of International Child Abduction, and the year 1996 Inter-American Convention on the International Return of Children.

Government
The Mexican Ministry of Foreign Affairs, which is known as the “Secretaría de Relaciones Exteriores” (“SRE”), is the governmental body appointed by Mexico as its Central Authority for performing the duties provided in said international conventions.

The SRE, through its Offices “Dirección General de Protección Consular y Planeación Estratégica” and the “Coordinación de Derecho de Familia”, will process the requests for the international restitution of wrongfully removed and/or wrongfully retained children.

According to SRE´s webpage, the application form to open a case file for the international restitution of a child, requires the following information:

• Information concerning the person or institution requesting the international return of the child.

• Information concerning the person alleged to have wrongfully removed or retained the child.

• Information concerning the person (or institution) requesting the international return of the child.

• Statement of the facts and circumstances surrounding the international wrongful removal or retention of the child.

• Description of the date, time, place and circumstances of the international wrongful removal or retention of the child, including the dates of issuance and expiration of any travel documents.

• Reference to any ongoing judicial proceedings between the parents of the internationally abducted child.

• Proposal for the international return of the child.

• Indication on whether the left-behind parent has travel documents, visa and/or immigration authorizations to enter the foreign country where the child is being retained or has been relocated to.

• Indication on whether the left-behind parent speaks, reads or understands the language of the foreign country where the child is being retained or has been relocated to.to

• Attach to the application form photographs/pictures of the minor child.

• Attach to the application form photographs/pictures of the parent or individual who has wrongfully removed the child internationally from the latter´s habitual place of residence.

• Attach to the application form a certified copy of the birth certificate of the child.

• Attach to the application form a certified copy of the marriage certificate of the child´s parents.

• Attach to the application form a certified copy of the divorce decree of the parents of the subject minor child.

• Attach a certified copy of the Court´s decree trusting one of the parents with the physical possession (“guarda y custodia”) of the subject child.

For greater detail, please see the relevant part of SRE´s website at.

Court proceedings
In Mexico, child abduction cases are handled by the Civil Courts, namely by the Courts for Family Matters.

The Mexican Highest Courts have issued a good number of judicial precedents for the correct understanding, interpretation and enforcement of the principles and provisions of the 1980 Hague Child Abduction Convention.

Such criteria (some persuasive and other with binding force) are published in the web platform of the precedents system of the Mexican Supreme Court of Justice.

Child participation
The “voice of the child” is given much importance in Mexican Family Law, including relocation and abduction cases.

As a matter of Mexican statutory Law, children have the fundamental right to be heard in the proceedings whose outcome may affect the future of such children.

Their views of the child shall be duly weighed and considered, and their conclusive effects will depend on the age and maturity level of the subject child.

Evidently, special social services protocols are to be applied to adequately assist, guide, and psychologically protect the children during said Court hearings.

Mediation
Mediation is promoted at all stages of the relocation and restitution proceedings.

Other Mexican proceedings
When dealing with international child abduction cases, it is a recurrent practice for the abducting parent to trigger in Mexico criminal and/or Family Law proceedings as an effort to stop, block, or slow down the restitution proceedings.
By reason of the applicable international conventions, any such domestic proceedings shall be stayed until the final order is issued in the restitution case.

Prevention
If you think your child is in Mexico, but you do not know exactly where, the Mexican Central Authority (namely, the SRE) can help or guide you to locate your child.

You can also commence a return proceeding engaging the legal services of private Family Law litigators. When doing so, make sure the attorneys you are intending to retain are not only specialized in the handling of international Family Law cases, but are also well experienced in the successful handling of international child abduction cases; otherwise, your own attorneys can negatively affect and jeopardize the success and outcome of your international child abduction case.

The Mexican Central Authority should be able to guide you on the pros and cons of retaining your own counsel for the handling of your international child abduction case.

Legal aid
In my opinion, unfortunately, legal aid is not a true option in Mexico for the successful handling of international child abduction cases.