It is important to note that both Mexico and the United States are governed by the Hague Convention which sets forth the International law for Child custody. This forum also deals with child abduction cases that occur between both countries. As such, absent extraordinary emergency circumstances the laws and decisions related to custody generally result in the return of children to the country where they had habitually lived.
While the Hague Convention is a well-recognized international treaty, all countries enforce it differently. For instance, the United Kingdom returns children very quickly whereas Germany and France act more slowly. As far as Mexico goes, they act very slowly or not at all.
Mexican divorces are not automatically accepted in New York. For recognition, the decree must comply with jurisdictional laws, procedural rules, and public policy. New York requires that the aggrieved party receive advance notice to participate in the proceedings. Additionally, foreign decrees, including those from Mexico, must align with New York’s public policy, which generally disallows “mail-order” divorces where neither party has any genuine connection to Mexico. See Cammarota v. Secretary of Health, Education & Welfare, 329 F. Supp. 1087.
In conclusion, if you are concerned about the validity of a Mexican divorce in New York, consulting with a family law attorney of both interested states is highly advisable. .
While Mexican family courts typically exercise jurisdiction and decide custody issues when the child is a resident of Mexico, irrespective of immigration status, the Courts there will consider as more overriding factors, the child’s overall welfare with one parent over the other. But habitual residence plays a huge role in any judicial determination of custody in an international custody case.
As to the international jurisdiction issues surrounding child custody, some of the laws in Mexico mimic those of New York in some respects. For instances, both Mexico and New York are guided by a consideration of the “Best interests of the child.” Custody decisions guided by the “best interests of the child” principle weigh varying factor and do not favor mothers over fathers. The Court in Mexico also prohibit corporeal punishment of children. Recent reforms have been passed in Mexico which foster joint custody with the aim toward eliminating bias in favor of the Mother. Again, this move toward more equitable custodial rights decisions also mimic the general trend we see in the United States However, as in all Courts, there is a lot of judicial discretion that come into play which include potential bias.
Some laws in Mexico suggest that the Mexican courts view children as “ rights-holders” and so they sit as protectors of their safety and ongoing development, and they work to focus on their protection, well-being, and development. It establishes a patter of laws that are quite similar to those in New York. As a practical matter, however, my research shows that the Courts in Mexico often favor the Mother. Their body of law is definitely evolving, however.
Generally, Mexico will not hear a custody case if neither parent is a legal resident and if both do not consent to said custody proceedings. An exception to that exists when one party already has sole legal custody in Mexico and resides in Mexico. In that situation, that party must provide documentation proving their custodial rights and their case can be heard
However, Mexico may uphold orders from the United States, but they are not obliged to enforce them unless said Order complies with their own rule of law. Here are the requirement which must be met for a nonresident filing for divorce in Mexico. First, be sure to retain a Mexican lawyer to represent you. Be prepared to appear in Court in person as that is always best, but if that is not possible a Court may allow you to give a power of attorney to your Mexico Lawyer to appear for you. Always serve legal documents through the procedure dictated by the Hague convention. This service is a bit more complicated and time-consuming than regular process service so be prepared for delays. Lastly, be sure to provide the Mexico court with the child’s birth certificate, any existing papers concerning custody, and a detailed paper outlining your claims. Be prepared in advance of the hearing and if it is an emergency application be sure to have actual proof of unfitness, or evidence that the best interests of the child requires the return of the child to the United States. This is vitally important, especially in emergency circumstances concerning the safety of the child.
If you plan to seek custody, consult a family law attorney in Mexico and one where you currently live to ensure you meet the criteria for relief. Note that this article is for informational purposes only and does not constitute legal advice. Consult your own attorney and those in both states before proceeding with divorce or child custody actions. Rely only upon their advice since each case is very different from another case.
I hope you have found this information helpful.
Your “New York Divorce” and “Child Custody” Lawyer
Lisa Beth Older, Esq.