international child abduction and withholding access to visitation
Everyday seven children go missing in Mexico. Many are sold into forced labor, illegal adoption, or the horrors of the sex trafficking industry. Many of these missing children come from the states of Jalisco, Puebla, Yucatan, and Guerrero.
Mexico suffers from human rights crises fueled by drug violence and family breakup. Corruption and impunity, including in the judicial system, contribute to this. This increased violence, poverty, corruption, and other factors have led to the breakup of the family unit, marital conflict and disputes over parental authority, guardianship and custody, visits, or the payment of alimony. Children and adolescents are often in the middle of conflicts between their parents – sometimes leading to the violation of children’s rights.
Although Mexico has signed many international conventions on international child abduction, the country fails to properly implement them.
Legal cases related to international child abduction, especially the appeal process, must be expedited and resolved faster. This will require more resources and a great commitment to ending systematic corruption.
Mexican policymakers at all levels, including local authorities, must prioritize the rights of children in budgets, data collection, and policymaking.
Under Mexican law, both parents have the right and power to decide on what they consider to be in the best interests of the minor, such as the place where they live, the school they attend, and other relevant activities. This is called parental authority – or the right to make a decision about the child – and is different than custody. Parents have this authority by the mere fact that they are parents regardless if they are married, separated, or divorced.
Child custody cases are usually decided by a family judge or a civil judge, either through a court decision or through an agreement between the parties. It is possible for one parent to be granted custody while the other parent retains parental authority rights such as visitation or deciding on the minor’s change of residence or school. Custody decisions must be in the child’s best interests as opposed to the best interests of the parents who exercise legal authority over them.
In Mexico, each state has its own civil or family code for regulating the rights of families, including guardianship and custody of children. The Federal Civil Code (Código Civil Federal) applies where certain rights or obligations aren’t covered by the state. All states follow the same basic principles regarding the rights of separated parents, an evaluation which is based on the child’s best interests.
Parents who do not live with their children still have rights over the child, provided there are no other extenuating circumstances such as domestic violence or sexual abuse. Similarly, a parent who maintains parental authority (meaning a court has not taken their rights away) has the right to know the child’s address and telephone number since they maintain the right to stay fully informed about their child. On the other hand, parents who have lost their parental rights are not permitted to know the child’s information or exercise any legal right over their children – especially in circumstances where the child’s best interests are endangered.
In June 2000, international child abduction was declared a federal crime punishable by imprisonment. In Mexico City, for example, this can be from one to 15 years in prison, but each state establishes its own punishment. Mexico does not have a system in place to monitor court orders issued in custody cases, leaving the responsibility of follow-up to the parents.
Although it is likely that parental abduction within Mexican borders is happening, data and information on the topic are limited.
Mexico has ratified two international conventions related to child abduction: The Hague Convention and the Inter-American Convention on the International Return of Children. Mexico is also a US Treaty Partner under the Hague Abduction Convention. This, in theory, provides a civil law mechanism to address where child custody issues should be decided in either Mexico or the US for parents seeking “the return of children who have been wrongfully removed from or retained outside of their country of habitual residence in violation of custodial rights.”
The issue is often that because of the country’s high levels of systemic corruption child return applications and child disappearances remain unresolved. Parents with more resources – and money – are those that are most likely to find their children.
From January to June 2019, 57 minors had already been reported kidnapped in the country. It is unclear how many of those abductions were parental abductions. What we do know that is in 2017 the states (and federal entity) with the largest number of requests for the return of internationally abducted minors were: Mexico City, Michoacán, Baja California, Chihuahua, and the greater state of Mexico. Most of these requests were coming from the United States. In fact, Mexico is the main location for children abducted from the United States.
Many of these cases remain unresolved with the US State Department reporting that the Hague convention is not consistently applied by Mexican courts. While there has been some progress in several states and districts in training judges to hear convention cases in a timely manner, there remains a low success rate in locating children abducted to Mexico. Mexican authorities are blamed for not allocating enough resources or giving a priority to child abduction. < < In a 2009 court case in Texas that involved a father deemed to be at risk of abducting his child to Mexico, the US court made strong allegations against Mexico’s legal system and ruled the father should only be allowed supervised visitation due to his risk and Mexico’s poor record. The Texas court called out Mexico’s legal system for lacking ways to enforce child custody order and argued that this posed a risk to children’s physical health and safety because of the many human rights violations committed against children, including child labor and a lack of child abuse laws.
Some progress has been made in 2020 though with the average time to locate a child in Mexico now two months and 25 days. Once that child is located, the US State Department reports that Mexican judicial authorities regularly reached timely decisions. What often delays child abduction cases are drawn-out appeals at the courts. Such delays are only expected to get worse as the current government spending cuts result in limited resources and the pandemic causes delays.
Parental alienation or – the act of a family member manipulating a minor to prevent, hinder, or interfere with that child’s relationship with either parent – is illegal in Mexico. It can result in the court ordering that custody of the child be transferred to the other parent, contact with the alienating parent be suspended and the child receives counseling. The punishment depends on the severity of the alienation and can reach a maximum of 15 years in prison.
There are a number of steps parents can take to prevent the abduction of their children, whether by a parent, relative, or stranger.
Do not hesitate to take action if you think the other parent or another caregiver has taken your child.
Get a court order or custody decree. A clear court order may be the most important preventative measure. This could include having to turn the child’s passport to the court so it cannot be used, travel restrictions, and custody arrangements.
Be aware of warning signs. Pay attention to random changes in the other parent’s life, including quitting a job or selling their home, which could be indicators that the other parent is getting ready to move.
Notify local law enforcement, airlines, airports, or bus stations and give them copies of any court orders, including custody, protection, and restraining orders, contact information for you, and photographs of your child to help authorities identify them if they are taken to one or more of these places.
Consider contacting Mexico’s foreign embassy or the nearest Mexican consulate if your child is or maybe a dual national of that country. If the other parent is a citizen of Mexico, then your child may have a right to obtain Mexican nationality and thus be able to obtain a passport from that country.
Parents can initiate a Hague case for the return of, or access to, a child in Mexico, through the Secretary of Foreign Affairs (Secretaria de Relaciones Exteriores. The Mexican Central Authority (MCA) will then prepare a written petition for the court explaining the law of the Hague Convention and forward the application to the relevant state court. There are no fees for filing Hague applications with the MCA.
After submitting the required documentation to the MCA for the Hague Convention and the Inter-American Convention (where relevant), parents or caregivers a complaint with the Attorney General’s office of the state where the child resides or was visiting when they were abducted. That Attorney General’s office might issue an Amber Alert in order to help locate the missing child.
The materials available on this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.