MEDIATION: 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. As such, this system may be a helpful tool for parents seeking mediation services. It is important to note that DIF does not represent Hague Convention applicants in court, nor do they assign attorneys to take Hague Convention cases.
HAGUE ABDUCTION CONVENTION: 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 has been cited in the annual Compliance Report on the Hague Abduction Convention as a country demonstrating a pattern of noncompliance in the areas of law enforcement performance and judicial performance.
Mexico 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. Family court judges have jurisdiction for resolving disputes concerning custody, rights of access, and child abduction based on the laws of that state. They therefore receive and rule on Hague Convention cases.
Mexico has established a Central Authority charged with applying the procedures of the Hague Convention by working with state authorities. The Central Authority of Mexico is part of the Ministry of Foreign Affairs (Secretaria de Relaciones Exteriores), and is responsible for cases of children abducted from and abducted to Mexico.
The address of Mexico’s Central Authority is:
ATTN: Reyna Martinez Lopez
Secretaría de Relaciones Exteriores
Dirección General de Protección y Asuntos Consulares
Oficina de Derecho de Familia
Plaza Juárez No. 20, Piso 17
Colonia Centro, Del. Cuauhtemoc
06010 Mexico, D.F.
MEXICO
Involvement of specific offices varies from state to state. The Central Authority generally coordinates its work through the offices of Desarollo Integral de la Familia (DIF), an agency similar to Child and Family Services in the United States. Hague cases may also involve the state prosecuting attorney’s office.
A parent wishing to initiate a Hague Abduction Convention case should prepare and submit an application (see details below) to the Mexican Central Authority. 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. It is important to mention that the Central Authority of Mexico does not represent Hague Convention applicants in court, nor do they assign an attorney to take the case.
The first step in a Hague Convention case in Mexico is to confirm the child’s location. Since a Hague case can only be heard in the court with appropriate jurisdiction, an application cannot move forward in the judicial system in Mexico until the child’s location is known. If an application contains a known address for the child, the Central Authority of Mexico will forward the Hague application and its supporting documents to the Superior Court of Justice of the state where the child is believed to be residing. The Superior Court will then assign the case to a specific Family Court judge.
When no specific address for the child is known, the Central Authority of Mexico 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 delays in the processing of a case. Therefore, it is crucial to include in the application the most complete information available concerning the location, or possible location based on location of extended family members, of the child.
Once the case is with the court, the Family Court judge sets the schedule for the rest of the case. Generally, the family court 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 petition has been decided. If the taking parent is believed to be a flight risk or if a voluntary return is not desired, the Hague application or supporting documents should clearly reflect this information.
If a voluntary return fails or is not requested —though the procedures vary slightly from state-to-state in Mexico— the taking parent is generally notified of the date and time of the Hague hearing in court. The amount of notice given varies, but is usually at least 24 hours as is required by Mexican law. Whenever possible, at the time the notice is given 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.
Generally, the local courts notify the Central Authority of Mexico in advance of the hearing date and time set by the judge’s office. If possible, it is important for the applicant parent to attend the hearing in Mexico. After hearing from the parties in attendance at the hearing, the judge will issue the order on the merits of the case. The judge will either grant the return of the child to the United States or deny the return based on limited exceptions as outlined on the text of The Hague Convention. As this order is usually effective immediately, it is important for the applicant parent to be present to coordinate the logistics of the child’s return, if the return is ordered.
It is important to mention that either party may appeal a Hague court decision, therefore delaying the enforcement of an initial return order if it was granted. To file an appeal an applicant must retain private counsel. Private counsel should consult directly with Central Authority of Mexico to discuss appeal procedures.
In addition to the right to appeal a Hague decision, a special appeal process is 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 an amparo has been filed, all action ceases on a Hague case until the amparo has been ruled upon– often many months later. An amparo can be filed at any time during the legal proceedings of a Hague case, essentially staying the matter even before a judge has had the opportunity to rule on the Hague petition before his court. Decisions on amparos can be appealed, further delaying any action by the judge hearing the Hague case. Despite the fact that abuses of the amparo appeal system in Mexico may be decreasing, as more judges and attorneys better understand the principles of the Hague Convention, several cases have been delayed for years while amparos and their appeals have prevented progress of a Hague case.
