International Child Abduction (Parental Kidnapping) in Mexico
Every year, hundreds, if not thousands, of children are illegally taken to Mexico against the wishes of one of their custodial guardians. The USA and Canada bear the brunt of this burden with the number of children abducted to Mexico from these countries being higher than the number of American or Canadian children abducted to almost every other country combined.
Once a child is abducted to Mexico there are several legal avenues to attempt to recover an abducted child
Legal Remedies
I. Criminal Charges
The first avenue is criminal charges. Mexico allows for extradition of Mexican citizens for crimes committed in other countries if and when there is commonality in the penal code for that particular criminal act. In this case, since child abduction and retention are considered crimes in Mexico, having your local country file criminal charges and request extradition is one possible route. In practice however we find that most governments are not willing to request extradition for a parental kidnapping case.
II. Deportation
The next option is to pursue deportation of the child abductor. If the person abducting the child is not a Mexican citizen requests can be made to have the abducting parent’s visa revoked and have them deported. This avenue for recovery of children in Mexico works quite well in practice if, and only if, the abductor is not a Mexican citizen. This is so because it is against the Mexican constitution to deport a Mexican citizen.
III. Enforcement of a foreign custody order
Another option is to pursue custody in Mexican courts. This option is rarely used in international cases and should only be used when the final option is not available. It should be notet that most of the people (and some of the family judges) they still believe that under Mexican law all children under the age of 7 are given to the mother’s custody automatically unless she can be shown to be unfit, this is the real situation only in divorce cases and domestic violence -when the mother is not the sourse of the violence-. Mexican Constitution rules in its article 1o. that men and women are equal before mexican law. This is quite different from other countries where standards such as “Joint Custody” or the “Best Interests of the Child” are the core principles in determining custody. It bears mentioning that in Mexican family law we still use the best interest of the child standard. We just define that to mean being in the custody of the mother until at least 7 years of age. But even mothers submitting themselves under such local Mexican laws will find that they will likely eventually get custody but not be able to leave the country to return home with their child legally
IV. Hague Convention on the Civil Aspects of International Child Abduction
The best, and the final legal option available to you is the Hague Convention on the Civil Aspects of International Child Abduction. Mexico signed the Hague Convention on June 20, 1991. One might think that, with the high volumes of abductions to Mexico, and the nearly 20 years that Mexico has been a signatory to it we would have a well established set of best practices and laws for how to implement the Convention. Such, however, is very unfortunately not the case. Many judges, prosecutors, social workers and court psychologists have no background in the arena of International Parental Kidnapping. The result of this is that parents of children abducted to Mexico try to maneuver through a legal system they are unfamiliar with even while the principal players in that system are unfamiliar with how to apply the Hague Convention (if not what the convention even is). Judges and other legal professionals make up some of the rules as they go and nationalism, paternalism, sexism and xenophobia determine the outcome of the case as often as not.
In spite of its warts the Hague Convention is the legal option we specialize in. To summarize, criminal charges can be effective at recovering children in Mexico but requires the support of domestic law enforcement. It should be noted that law enforcement does not always work and the existence of criminal charges against the abducting parent in the home country will result in the abductor attempting to raise the existence of those charges as a defense to the return of a child. Deportation would be an excellent avenue to pursue the abductor, but only applies with non-Mexican citizens. and of course, deportation takes a lot of time, Custody barely merits analysis and should only be used if, for some reason, the Hague Convention is unavailable.
How to Begin a Winning Hague Case in Mexico
The absolute first and most important thing you need is an attorney. You don’t have to hire me, but you must hire someone. You may be, and actually likely will be, told that “you are not ‘required’ to hire an attorney to file a Hague petition in Mexico” This is very true. It is also very misleading. While you are not required to have an attorney if you don’t have one you will almost certainly lose your case... and your child. There are a number of reasons why this is so but the long and short of it is the odds of a successful return without an attorney are slim to none. A corollary to this rule is don’t believe any promises made to you by a Mexican attorney pretending they can win a Hague case and have your child returned in 48 hours. Hague cases can, and usually do, take a lot of time. Anyone who says differently is either ignorant or dishonest and not the person you want to represent you. Also be sure the attorney has some awareness of the Hague Convention, preferably someone who has handled a Hague case before. When you speak to an attorney you are considering describe the details of your case to the attorney. If he begins to talk to you about Mexican Custody laws or “Patria Potestad” (child custody) and not the Hague Convention you can also move along to another attorney.
Secondly, try to hire an attorney before you even file your Hague petition. Almost no one does this, but one peculiarity about Mexico is that Hague Convention cases enjoy “double jurisdiction” between federal and state courts. The result of this is that a Hague case can be initiated directly in federal courts and it is generally very preferable that the case begin in federal courts (again for too many reasons to enumerate here) but if you do not correctly request that your case go directly to federal court it will not this why virtually all Hague cases start in family courts (the exact court depends on the State your child is in.). Once Hague cases begin in State courts they can take 3-12+ months to appeal their way up to federal courts (when they can just start in federal court). Another important thing to keep in mind is that the Hague petition filing is a critical document that will be the basis for your case. Don’t just fill out the blanks and turn in the minimal amount of documentation. Take advantage of this unique opportunity to submit as much supporting evidence and documentation as possible. Obtaining a legal custody order in the jurisdiction your child was abducted from is a very helpful piece of evidence to submit with the Convention petition.
Additional links on international child abduction in Mexico
* http://travel.state.gov/abduction/country/country_508.html
The country information flyer on international child abduction from the US State Department. A very large portion of this page is misleading, inaccurate or outright wrong.
* http://bringseanhome.org/forums/index.php/topic,2019.0.html
Long forum thread dealing with children abducted to Mexico at the website of the Bring Sean Home Foundation.
* http://en.wikipedia.org/wiki/International_child_abduction_in_Mexico
There is a lot of good information here. Could use some updates
