Option 3: Using a Foreign Country’s Civil Justice System
 
If your child has been abducted to a country that is not a party to the Hague Abduction Convention, or if the Convention does not apply in your case, you can attempt using the civil justice system in the country to which your child was taken to try to achieve the return of your child. This usually will involve the family court system of that country.

Challenges to Using the Civil Justice System in Foreign Countries

There are many challenges that parents face in trying to use the Civil Justice system in countries that are not a party to the Hague Abduction Convention. For example:

• The person who has abducted the child may have a “home court” advantage if the proceedings take place in that parent’s country of origin; and if the foreign country has a gender-based cultural bias.

Additionally, courts in other countries often do not consider the prior court decisions made in the United States. A custody order in the United States can therefore be meaningless abroad. When confronting this challenge, keep in mind the following three things:

• Each country is a sovereign nation. Sovereign nations cannot interfere with each other’s legal systems, judiciaries, or law enforcement.
• Generally, every country only has jurisdiction within its own territory and over people present within its borders; and
• Although court orders from other countries may be recognized in the United States under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), this is rarely true in reverse–U.S. court orders are not generally recognized in other countries.

Proceeding with the Civil Justice System in Foreign Countries:

Even though your custody order from the United States has no legal authority in another country, it still might help you. Sometimes that custody order can be persuasive in a foreign court. The foreign court may consider it as evidence. In rare cases, the foreign court may decide to even recognize and enforce the custody order on the basis of comity (voluntary respect of one country for the laws and judicial decisions of another country).

Ultimately, the foreign court will decide a child custody case on the basis of its own domestic laws—it is at the discretion of that court whether or not to give any weight to a U.S. court order.

If you decide to use the Civil Justice system in a country that is not party to the Hague Abduction Convention, you will likely need to retain an attorney in the country to which your child was taken. The case officer from the Office of Children’s Issues may be able to provide you with some helpful hints about that country. Keep in mind that they are not able to provide legal advice to you, but they can serve as a helpful resource to you as you proceed with the emotional and difficult task ahead.

Tips to Keep in Mind

• Do not ignore a document issued by a foreign court. Bring it to the attention of your case officer at the Office of Children’s Issues without delay.
• Remember that different countries may have requirements that differ from those used by U.S. courts, such as citizenship, to proceed with a divorce or custody action.
• Some countries consider custody as part of a divorce petition, so agreeing to a divorce abroad you may inadvertently acquiesce to foreign court jurisdiction for custody case as well.

Option 2: Using the Hague Abduction Convention

Does the Hague Abduction Convention Apply to My Case?

YES:

• Your child was abducted to a country that is a party to the Hague Convention; and
• Your child is younger than 16 years old;

NO:

• Your child was abducted to a country that is not a party to the Hague Convention; or
• Your child is older than 16 years old;

Background Information

For left-behind parents seeking the return of their children, one of the biggest sources of frustration is that courts in many other countries do not take into account the prior decisions made by courts in the United States.  A custody order in theUnited Statescan be meaningless abroad.  When confronting this challenge, keep in mind the following three things:

• Each country is a sovereign nation. Sovereign nations cannot interfere with each other’s legal systems, judiciaries, or law enforcement;
• Generally every country only has jurisdiction within its own territory and over people present within its borders; and
• Although court orders from other countries may be recognized in the United Statesunder the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), this is rarely true in reverse - U.S. court orders are not generally recognized in other countries.

In part because of these difficulties, twenty-three nations agreed to draft a treaty about international parental child abduction at the Hague Conference on Private International Law in 1976.  The treaty was to be a way for nations to work together to solve abduction cases.  Between 1976 and 1980, the United Stateswas a major force in preparing and negotiating the 1980 Hague Convention on the Civil Aspects of International Child Abduction  (Hague Abduction Convention).  And on July 1, 1988, the Convention came into force for theUnited States.

The Hague Abduction Convention is the primary civil law mechanism for parents seeking the return of the children from other treaty partner countries.  Countries that are party to the Convention have agreed that a child who was living in one Convention country, and who has been removed to or retained in another Convention country in violation of the left-behind parent’s custodial rights, shall be promptly returned.  Once the child has been returned, the custody dispute can then be resolved, if necessary, in the courts of that jurisdiction. The Convention does not address who should have custody of the child; it addresses where the custody case should be heard.

To date, the United States partners with 68 other countries under the Hague Abduction Convention.  Each country that is party to the Convention has designated a Central Authority, a specific government office, to carry out specialized Convention duties.  Central Authorities communicate with each other and they assist parents in filing applications for return of or for access to their children under the Convention.

The Central Authority for the United States is the Department of State’s Office of Children’s Issues.

How to Use the Hague Abduction Convention

1. Fill out an Application:  In order to use the Hague Abduction Convention as a possible solution, you will need to file an application.  Your application will specify whether you seek the return of your child or access to your child.  This application contains information such as the habitual residence of the child, the date of the wrongful removal, and your custody agreement, among other items.

NOTE:  You do not need to have a custody decree to file and application under the Convention.  However, to apply for the return of your child, you must:

• Have had and been actually exercising a “right of custody” at the time of the abduction (“right of custody” may be joint legal or sole legal custody)
• Have not given permission for the child to be removed or, in the case of wrongful retention, to be retained beyond a specified, agreed-upon period of time.

2. Submit the Application:  Once you have completed the application, we recommend that you submit it to the Office of Children’s Issues office (although you may submit your application directly to the Central Authority or foreign court of the country where the child is believed to be held).  The Office of Children’s Issues will review your application to ensure that it is complete and that your request complies with the requirements of the Convention before forwarding it to the foreign Central Authority.

IMPORTANT REMINDER:  An application should be submitted as soon as possible after an abduction or wrongful retention has taken place.  Time is of the essence. If more than one year passes before you file a petition, you could be barred from pursuing your case. Do not wait until you get a custody order.

3. Attend Hague Proceedings:  Once your application for return or access has been submitted to the foreign Central Authority, that foreign Central Authority is responsible for processing it.  Operations and procedures implementing the Convention differ in each country party to the treaty.  For this reason, Office of Children’s Issues case officers—who are experienced with the various countries’ proceedings—are available to help you understand the process for the country to which you submit your application.

Sometimes just filing the application is sufficient to persuade the taking parent to return the child.  The Convention has proven to be effective, and as a result its reputation is strong.  When an abducting parent learns that a Hague application has been or will be filed, he/she may return the child voluntarily to avoid further civil action under the Convention.  The majority of Hague cases go to trial, however, and require that the left-behind parent retain an attorney in the country where the child is located to petition the court for return.

If the abducting parent does not voluntarily agree to return your child, you may want to attend a legal proceeding in the foreign court about your application for return. Office of Children’s Issues case officers are prohibited from acting as an agent or attorney in legal proceedings arising under the Convention, however they will provide information on an ongoing bases.

Conditions to Filing a Hague Application — What You Must Prove to Succeed

The Convention does not apply to every international parental child abduction case.  Several parameters must be met in order to file an application for return under the treaty.

For your case to have merit, you must show:

1. That your child was habitually resident (child’s home for a significant amount of time) in one Convention country, and was wrongfully removed to or retained in another Convention country (taken or retained in violation of your custody rights);
2. That the wrongful removal must have occurred between two Convention countries that have a treaty relationship on or after the date the treaty came into force between the two countries (the dates are different for every country);
3. The child or children are under the age of 16 at the time of filing the petition.

Exceptions to a Country’s Obligation to Return a Child

Depending on the facts of your case, there could be a treaty obligation for a Convention country to return an abducted child or grant access to the child, unless one of the following exceptions apply:

• There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence;
• The child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views (the treaty does not establish at what age children reach this level of maturity – that age and the degree of weight given to children’s views varies from country to country); or
• The return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

Note: Interpretation of these exceptions varies from country to country.

Criminal Charges and the Hague Abduction Convention

The Convention is a civil legal mechanism for return and does not provide for criminal sanctions.  As such, criminal charges may have an unintended negative effect on the operation of the Convention.  With the Convention, the emphasis is on the swift return of a child to his or her place of habitual residence where the custody dispute should be resolved. Courts in some countries, including theUnited States, have denied return of children solely because the taking parent would be arrested if they accompanied the child home.  Many of these courts, both in theUnited Statesand abroad, have held that the arrest of the parent would expose the child to psychological harm under Article 13(b) of the Convention.  This varies by country and the type of criminal charge, but if you are considering pressing criminal charges, we recommend first contacting our office to discuss potential benefits and consequences..

Children Abducted to the United States

The Hague Abduction Convention applies to children abducted to and from countries party to the Convention.  If a child is abducted to theUnited Statesfrom one of our Hague treaty partners, the parent who is left behind may apply for return under the Convention.  Even if the child was born in the United States, if the child is now found to be “habitually resident” in another country the child may be ordered to return to the country of habitual residence under the Convention, provided the case meets the requirements of the Hague and the child’s country of habitual residence is a signatory.

On April 1, 2008, the Office of Children’s Issues assumed the handling of all “incoming” Hague child abduction cases – that is, abductions of children to the United States from countries that are partners under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.  As the federally designated Central Authority for the Convention, we are pleased that all Central Authority work is now handled within our office.

IMPORTANT REMINDER: The Hague Abduction Convention focuses on issues of residency, not citizenship.  The Convention does not confer any immigration benefit.  Anyone seeking to enter theUnited States who is not aUnited States citizen must fulfill the appropriate entry requirements, even if that person was ordered by a court to return to theUnited States. This applies to children and parents involved in any child abduction case, including a Hague Abduction Convention case.

When a taking parent in a Hague Abduction Convention case is ineligible to enter the United States under United States immigration laws, the parent may be paroled for a limited time into the United States through the use of a Significant Public Benefit Parole in order to participate in custody or other related proceedings in a United States court.

Learning About Applicable Laws and Solutions

If you are a parent whose child has been taken from the United States to another country in violation of your parental rights, the Office of Children’s Issues is here to help you. It offers many services that you might find valuable during this difficult time. As the U.S. Central Authority for the Hague Abduction Convention, the Office of Children’s Issues can help you file an application for return of your child through this civil law treaty. If your child is in a country that is not a treaty partner, we can help you understand other possible solutions.

The Office of Children’s Issues has experts on international parental child abduction. Its case officers understand what works in different countries and are available to respond to your questions and offer a variety of resources. In addition, the Office of Children’s Issues recommends consulting with an attorney. Finding an attorney is usually an important part of resolving an international parental child abduction case.

Option 1: Settling out of Court

What is Mediation?

Mediation in child custody disputes is a facilitated discussion between two parents that focuses on helping the parents reach an agreement acceptable to both parties. Mediation (sometimes referred to as “conciliation”) can be one of the best ways to achieve results in custody disputes. As a preventative measure, parents may be able to resolve a custody dispute before one parent takes drastic action and abducts the child to another country. In cases where an international abduction has already taken place, mediation can also be an effective tool, particularly when conducted in a way that is culturally neutral and respectful of the need for quick resolutions in child abductions.

What are the Benefits?

• Less time: mediation generally can be completed more quickly than court cases.
• More options (particularly Hague return cases): once agreement is reached about where the child will reside, parents can agree to custodial details that would be outside the perview of a court under the Hague Convention.
• Less intrusion: mediation is private, court is not.
• Lower costs: many professional mediators charge less than a lawyer – much less.
• More likely to be a lasting solution: parents who agree to conditions will be more likely to abide by them.
• Sometimes best for children: can prevent unnecessary relocation of a child in return scenarios.
• Perspective: mediators can help parents understand cultural differences and what may be best for parents and children in the long run.

What can be Drawbacks?

• Time: mediation can be used as a delaying tactic in Hague return cases and thus must be strictly time-limited and must not preclude court proceedings if agreement cannot be reached.
• Enforceability: in order to be legally binding, agreements must be recognized by a court or incorporated into a court order.
• Mediation is not always the best solution. Sometimes the courts are the best choice, particularly when one of the parties is intimidated by the other, or when the case involves claims of abuse or neglect.

How does Mediation Work?

Mediation works like a discussion. The two parents work with mediators, trained professionals who often have legal or social work backgrounds, to come to a solution to the controversy. The importance is placed upon the two parents reaching an agreement.

The goal of the mediator or mediators is to make sure that both parents are, for the most part, comfortable with the solution. This idea is why discussion is so important to mediators. Discussion, however, might not happen at one time or in one setting. Mediators or parents can choose to meet in a group – parent, mediator, parent – or one-on-one if the animosity is too strong. The important thing is that there is an exchange and flow of ideas. However, most mediators will require that parties each have legal counsel to advise on the legal viability of any agreement reached.

Mediation for international cases may be a little different. Language barriers and different legal systems may make resolution more difficult. For that reason, many European nations have employed mediation teams with two mediators, one from each country involved. While this model can be very effective, in the United States the costs may be prohibitive. When a solution is reached, the parents typically sign a written mediation agreement. Once filed with a court, this document is a public document and can be used in court if the agreement is ever violated.

What could Hamper Mediation?

• An inability or unwillingness to meet or listen
• Criminal charges: once filed, criminal charges may be difficult or impossible to remove.

Things to Remember:

• Mediation does not solve all issues.
• If your child has been abducted to a country that is a Hague Abduction Convention partner of the United States, ask your attorney whether you should proceed with a Hague return application at the same time you try mediation. Mediation should not be used by a parent to delay Hague proceedings.
• Be mindful of how long mediation takes. Set a time limit for mediation talks, particularly where child abduction has occurred.
• Focus on the needs of the child/children and wherever possible.

Additional Resources:

Each country handles the idea and practice of mediation differently. Some countries may be working with a short term, trial mediation program for abduction issues. Others have established mediation sources from international governing bodies like the European Union. There are also non-governmental organizations that seek to provide aid in mediation.

REMEMBER: Ask your State Department case officer for more information. Mediation is gaining ground and new resources are becoming available all the time.

Step 1: Opening an International Parental Child Abduction Case

Begin by opening an international parental child abduction case. This should be done in two places:

1. The Office of Children’s Issues: Contact the Office of Children’s Issues. It has case officers who stand ready to assist. It has expertise about specific countries and regions of the world, the laws and possible solutions in each country. After you call, it will open an international parental child abduction case for you, and your case will remain open until you request it to be closed or your child is returned to the United States.

2. The National Crime Information Center (NCIC): Contact your local police, file a missing person’s report, and request that your child’s name be entered into to the National Crime Information Center (NCIC) computer database. This is a mechanism provided to you by the Federal National Child Search Act of 1990, Make this report and enter your child in NCIC even if you think you know where your child is located in another country. If your local law enforcement is unaware of the legal requirements for immediate entry into NCIC, please let our office know. We will contact the law enforcement agency and provide them with information that may assist you.

Note: It is not always a good idea to file criminal charges against the abducting parent at this time.

Step 2: Searching For Your Child

If you are not sure about where your child was taken, locating your child is the top priority. Frequently, the abducting parent goes to great lengths to keep this location hidden, such as changing the name of the child. There are resources available to help you find your child. Some of these resources are listed below. The Office of Children’s Issues will work with you to access these resources to try to locate your child as quickly as possible.

• U.S. Embassies: If you know an address where your child might be located, and your child is an American Citizen, The Office of Children’s Issues can request that the nearest U.S. Embassy or Consulate in that country conduct a welfare and whereabouts visit to the child. To request a welfare and whereabouts visit, fax a request to the Office of Children’s Issues at 202-736-9132. The request must contain the following information:
o Your child’s or children’s full name (and any aliases, other names by which they may also be known);
o Your child’s date and place of birth;
o The full name (and any aliases) of the abducting parent; and
o Any information that may assist the U.S. Embassy or Consulate in locating the abductor, such as the names, addresses, telephone numbers of friends, relatives, place of employment, or business connections.
o The consular officer is required to request permission of the taking parent to conduct the welfare and whereabouts visit. If the consular officer obtains the other parent’s permission to visit the child, the officer will conduct the visit and report back to you about your child. In some instances, consular officers are also able to provide you with letters or photos from your child.

• Federal Bureau of Investigation: The FBI can help you locate your child. Its field offices across the country serve as the primary points of contact for those seeking FBI help in locating missing children. To request FBI assistance or learn more about their services, please contact the Crimes Against Children Coordinator at your local FBI Office.

• International Police: If law enforcement issues a warrant for the taking parent, the International Police Organization (INTERPOL) can conduct a search for your child in the country where you believe your child has been taken. Request that your local police contact INTERPOL.

• National Center for Missing and Exploited Children (NCMEC): NCMEC can help you circulate your child’s photograph to the media in the country where you believe your child was taken. NCMEC can also assist you in creating a missing person’s poster of your child. A poster may assist foreign authorities in attempting to locate your child.

Further Steps to Take in Your Search

Relatives and Friends of the Other Parent – One of the best ways to find your child in another country is through establishing friendly contact with relatives and friends of the other parent, either in the United States or abroad. You may have more influence with such persons than you suspect, and their interest in your child’s welfare may lead them to cooperate with you.

School Records – You can contact the principal of the school your child was attending to obtain information that might help you. The abducting parent may have requested that the school transfer your child’s records.

United States Postal Service Mail Cover – By contacting the United States Postal Inspection Services, you may be able to obtain a “mail cover” for United States mailing address that you know the taking parent would write to, like a family member or close friend. A mail cover is when the Postal Service scans the outside (or “cover”) of mail that is sent to an address for up to 120 days. This service may help you discover the new address of the abducting parent.

Credit Card, Telephone, and E-mail Records – It may be possible for your local police to obtain (by subpoena or search warrant) credit card records, telephone records of the taking parent’s friends or relatives, cell phone records, or e-mail records. This information can be vital in pinpointing the location of the taking parent. Check with state and local authorities to see if this investigation can be done for you.

CONSULATES:
Ciudad Juarez: Paseo de la Victoria #3650, Fracc. Partido Senecú; telephone 011-52-656-227-3000.
Guadalajara: Progreso 175, Col. Americana; telephone 011-52-333-268-2100.
Hermosillo: Calle Monterrey 141 Poniente, Col. Esqueda; telephone 011-52-662-289-3500.
Matamoros: Avenida Primera 2002 y Azaleas; telephone 011-52-868-812-4402.
Merida: Calle 60 No. 338 K x 29 y 31, Col. Alcala Martin; telephone 011-52-999-942-5700.
Monterrey: Avenida Constitucion 411 Poniente; telephone 011-52-818-345-2120.
Nogales: Calle San Jose, Fraccionamiento “Los Alamos”; telephone 011-52-631-311-8150.
Nuevo Laredo: Calle Allende 3330, Col. Jardin; telephone 011-52-867-714-0512.
Tijuana: Avenida Tapachula 96, Col. Hipodromo; telephone 011-52-664-622-7400.

CONSULAR AGENCIES:
Acapulco: Hotel Continental Emporio, Costera Miguel Aleman 121 – Local 14; telephone 011-52-744-484-0300 or 011-52-744-469-0556.
Cabo San Lucas: Blvd. Marina Local C-4, Plaza Nautica, Col. Centro; telephone 011-52-624-143-3566.
Cancun: Plaza Caracol Two, Second Level, No. 320-323, Boulevard Kukulkan, Km. 8.5, Zona Hotelera; telephone 011-52-998-883-0272.
Ciudad Acuna: Alfonso Gonzalez Ocampo # 305, Col. Centro; telephone 011-52-877-772-8179.
Cozumel: Plaza Villa Mar en El Centro, Plaza Principal, (Parque Juárez between Melgar and 5th Ave.) 2nd floor, Locales #8 and 9; telephone 011-52-987-872-4574.
Ixtapa/Zihuatanejo: Hotel Fontan, Blvd. Ixtapa; telephone 011-52-755-553-2100.
Mazatlan: Hotel Playa Mazatlán, Playa Gaviotas #202, Zona Dorada; telephone 011-52-669-916-5889.
Oaxaca: Macedonio Alcala No. 407, Interior 20; telephone 011-52-951-514-3054 or 011-52-951-516-2853.
Piedras Negras: Abasolo 211, Local #3, Col. Centro; telephone 011-52-878-782-5586 or 011-52-878-782-8664.
Puerto Vallarta: Paradise Village Plaza, Paseo de los Cocoteros #1, Local #4, Interior #17, Nuevo Vallarta; telephone 011-52-322-222-0069.
Reynosa: Calle Monterrey #390, Esq. Sinaloa, Col. Rodríguez; telephone: 011-52-899- 923-9331
San Luis Potosi: Edificio “Las Terrazas”, Avenida Venustiano Carranza 2076-41, Col. Polanco; telephone 011-52-444-811-7802 or 011-52-444-811-7803.
San Miguel de Allende: Dr. Hernandez Macias #72; telephone 011-52-415-152-2357.

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.

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).

Divorce is not available in the country; however, the state generally recognizes divorces of individuals domiciled abroad who have completed divorce proceedings in a competent court.

American diplomatic and consular officers are NOT permitted to perform marriages (Title 22, Code of Federal Regulations 52.1). Marriages abroad are almost always performed by local (foreign) civil or religious officials.

As a rule, marriages are not performed on the premises of an American embassy or consulate. The validity of marriages abroad is not dependent upon the presence of an American diplomatic or consular officer, but upon adherence to the laws of the country where the marriage is performed. Consular officers may authenticate foreign marriage documents. The fee for authentication of a document is $32.00.

Validity of Marriages Abroad

In general, marriages which are legally performed and valid abroad are also legally valid in the United States. Inquiries regarding the validity of a marriage abroad should be directed to the attorney general of the state in the United States where the parties to the marriage live.

Foreign Laws and Procedures

The embassy or tourist information bureau of the country in which the marriage is to be performed is the best source of information about marriage in that country. Some general information on marriage in a limited number of countries can be obtained from Overseas Citizens Services, Room 4811, Department of State, Washington, DC 20520. In addition, American embassies and consulates abroad frequently have information about marriage in the country in which they are located.

Residence Requirements

Marriages abroad are subject to the residency requirements of the country in which the marriage is to be performed. There is almost always a lengthy waiting period.

Documentation and Authentication

Most countries require that a valid U.S. passport be presented. In addition, birth certificates, divorce decrees, and death certificates are frequently required. Some countries require that the documents presented to the marriage registrar first be authenticated in the United States by a consular official of that country. This process can be time consuming and expensive.

Parental Consent

The age of majority for marriage varies from one country to another. Persons under the age of 18 must, as a general rule, present a written statement of consent executed by their parents before a notary public. Some countries require the parental consent statement to be authenticated by a consular official of that foreign country in the United States.

Affidavit of Eligibility to Marry

All civil law countries require proof of legal capacity to enter into a marriage contract in the form of certification by competent authority that no impediment exists to the marriage. No such document exists in the United States. Unless the foreign authorities will allow such a statement to be executed before one of their consular officials in the United States, it will be necessary for the parties to a prospective marriage abroad to execute an affidavit at the American embassy or consulate in the country in which the marriage will occur stating that they are free to marry. This is called an affidavit of eligibility to marry and the fee for the American consular officer”s certification of the affidavit is $55.00, subject to change. Some countries also require witnesses who will execute affidavits to the effect that the parties are free to marry.

Additional Requirements

Many countries, like the United States, require blood tests.
Some countries require that documents presented to the marriage registrar be translated into the native language of that country.

Loss of U.S. Nationality

In some countries, marriage to a national of that country will automatically make the spouse either a citizen of that country or eligible to become naturalized in that country expeditiously. The automatic acquisition of a second nationality will not affect U.S. citizenship. However, naturalization in a foreign country on one’s own application or the application of a duly authorized agent may cause the loss of American citizenship. Persons planning to apply for a foreign nationality should contact an American embassy or consulate for further information.

Marriage to an Alien

Information on obtaining a visa for a foreign spouse may be obtained from any office of the Bureau of Citizenship and Immigration Services in the Department of Homeland Security, U.S. embassies and consulates abroad, or the Department of State Visa Office, Washington, DC 20520-0113. General information regarding visas may be obtained by calling the Visa Office on 202-663-1225.

In divorce cases, the courts routinely grant Shi’a and Sunni women custody of daughters under the age of 9 and sons under age 7, when custody usually reverts to the father. In all circumstances except mental incapacitation, the father, regardless of custody decisions, retains the right to make certain legal decisions for his children, such as guardianship of any property belonging to the child, until the child reaches legal age. A noncitizen woman automatically loses custody of her children if she divorces their citizen father.