Mexico - Child Custody Law

Taken from the Canada Country of Origin Research

With respect to child custody, federal legislation distinguishes between parental authority and custody (Zamora et al 2004, 473). Parental authority (patria potestad) refers to the "whole group of powers--which also entail duties--conferred upon those who exercise them (parents, grandparents, adoptive parents, as the case may be) for the protection of non-emancipated minors with regard to their person or property" (ibid.; see also Aspuru Eguiluz 2006, 28).

Accordingly, a judge "normally awards patria potestad to both parents upon divorce, and only in extreme cases, usually based on lifestyle, is one parent deprived of parental authority." (Zamora et al 2004, 473; see also Mexico n.d.a.).

The second feature, commonly known as custody (guarda y custodia), refers to the "personal care of a minor child or incompetent adult, and it is understood that the ex-spouse who takes on this obligation is entitled to child support from the other ex-spouse" (Zamora et al 2004, 473). Typically, judges tend to grant the mother custody of the child, especially in the case of younger children (ibid.; 2006, Aspuru Eguiluz 2006, 27). According to an official from the System for Integral Family Development (Sistema para el Desarrollo Integral de la Familia, DIF), a government department, children under seven years of age are usually placed in the custody of the mother, unless there is a serious risk to the child in this situation (Mexico 29 May 2006). In a 2006 report prepared for the Federal District Human Rights Commission (Comision de Derechos Humanos del Distrito Federal, CDHDF), 94 per cent of custody decisions were granted to women (Aspuru Eguiluz 2006, 27). However, with respect to custody issues, "in making the final determination, the judge may listen to proposals and suggestions made for the benefit of the children by the grandparents, uncles, aunts, older brothers, and older sisters." (Vargas 2003, 86). For example, if the parents, for whatever reason, were unable to take care of the child, the grandparents may be granted custody (Mexico n.d.a.).

To initiate custody proceedings, the applicant must submit the following documentation: the original marriage certificate (if the couple is married), the original birth certificate of the child or children in question, the address of the parent requesting custody, and the names and addresses of two witnesses who are able to provide facts about the parent requesting custody (ibid.).

In April 2006, the Mexico City-based newspaper El Universal reported on a legal initiative to amend the Federal District's civil and criminal codes in order to provide better protection for children during divorce proceedings and address concerns raised by women's rights organizations regarding child custody and domestic violence (26 Apr. 2006). The proposed reforms were sent to the Federal District Legislative Assembly (Asamblea Legislativa del Distrito Federal, ALDF) by the mayor (jefe de Gobierno), Alejandro Encinas (El Universal 26 Apr. 2006). In particular, the amendments seek to extend maternal custody of child from age seven to twelve, except in cases where the child's development is endangered (ibid.). In addition, the amendments establish measures, including arrest and detainment for up to 36 hours, or the intervention of the Public Ministry, to prevent a spouse from denying the other parent access to the child (ibid.). Essentially, the amendments signify that both parents must agree to harmonious shared custody of the children (ibid.). The reforms also call for the creation of a new assistant for minors (asistente de menores) working under the DIF's Federal District office who will reportedly provide psycho-emotional protection for children during divorce proceedings, particularly when a child must appear before a judge individually (ibid.). Information on the progress of these amendments could not be found among the sources consulted by the Research Directorate.

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