The parents’ decision-making power is known as patria potestad (parental authority) under Mexican law. It is defined as the rights and responsibilities parents have over minor children and their property.

The Mexican highest courts of justice have defined patria potestad both as a privilege and as a duty of parents, which is limited by the best interests of the children principle.

Patria potestad comprises three aspects of a parent-child bond: (i)legal custody, (ii) physical custody and (iii) access and visitation rights.

A mother automatically acquires patria potestad of the child when the child is born, from the natural fact of giving birth to the child.

The requirements fathers have to meet in order to have patria potestad depend on two types of circumstances: (i) children born from a married couple or (ii) children born from non-married couples.

Children born from married couples will be subject to the joint patria potestad of both parents.

An unmarried father may obtain patria potestad by: (i) recognising a child as his own (provided such recognition is not contested by the mother of the child) or (ii) going through a judicial procedure to obtain a declaratory judgment of paternity (based on DNA testing).

Non-genetic parents may obtain patria potestad (i) through an adoption process before the Courts for Family Matters, or (ii) by assisted reproduction.

See 1.3 Requirements for Fathers.

Same-sex couples are allowed to have children (progeny). The First Chamber of the Mexican Supreme Court, based on the fundamental right of non-discrimination, has ruled that same-sex couples, and also single individuals, can become parents of children.

In Mexico, the requirements for adoption are:

• that it is beneficial for the minor;
• that the adopter is over 25 years of age and 17 years older than the adopted minor;
• that the adoptive parents have sufficient means to provide for the minor; and
• that the applicant for adoption clearly and simply states the intention to adopt; demonstrates an honest, moral and social way of living; and that they have not been prosecuted or are not pending criminal proceedings for crimes against the family, sexuality or health.

Both parents with patria potestad over the child must jointly grant their consent for the child to be relocated, either domestically or internationally.

If one parent wishes to relocate their child without the consent of the other parent who jointly holds patria potestad of the child, the parent intending to relocate will need  to obtain a Mexican court’s final and binding approval for such relocation. This, of course, will usually involve extensive litigation between the parents of the child.

Relocation to a nearby location might change the point of view of a judge, because one of the many things that a judge must consider is whether a child’s access to the left-behind parent shall be duly addressed.

Relocation within the same state is also likely to be considered by a judge in connection with access rights being duly protected.

Relocation to a separate Mexican state is harder for a judge to consider since it will depend on the distance between the place where the left-behind parent will continue to live and the child’s new home. Distance, due to the size of the Mexican territory, might become problematic in ensuring the child’s access rights to the left-behind parent.

It is wrong and unlawful to remove a child without the consent of the other parent who jointly has legal custody (namely, patria potestad) of the child. Mexico is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).

If a child is wrongfully removed from Mexico, the steps to be followed will depend on the country to which the child  has been abducted, or where the child is being unlawfully retained by the abducting parent. An applicant parent will generally have three options, as set out below.

• If a child is taken to a country which is a signatory to the Hague Convention, the applicant parent may  file their restitution application with the Mexican Ministry of Foreign Affairs (Secretaría de Relaciones Exteriores). The latter was appointed by the Mexican government as the Central Authority under the Hague Convention to procure the fulfilment of this international treaty. The Mexican Central Authority must send the application with supporting documentation to the central authority of  the country where the child was unlawfully taken to, or where the child is unlawfully being retained. Usually, the foreign central authority will send the application to the judiciary for a court to be assigned to resolve the Hague application. Nonetheless, the applicant parent may opt to file an application/petition directly with the courts having jurisdiction in the country the child was taken to.

• If a child is taken to a country which is a signatory to the Inter-American Convention on the International Return of Children, the applicant parent must file an application/petition/request with the Mexican courts or Mexican Central Authority (Secretaría de Relaciones Exteriores) or the diplomatic or consular channels. The Mexican Central Authority oversees compliance with this international convention. Once the application/petition is filed, it should be forwarded, through the proper channels, to the central authority in the country where the child was taken. The judicial or administrative authority where the child was taken shall implement the relevant proceeding for the child’s safest return to the habitual residence (Mexico).
• If a child is taken to a country with which Mexico does not have an international convention on child abduction in place, the proper avenue to follow is through the Mexican court system seeking international judicial co-operation, requesting the assistance of the courts in the location where the child was taken, arguing the “best interests of the child” standard, with the expectation that the courts abroad will honour such international judicial request. It is advisable to pursue an entire proceeding before the Mexican courts to obtain a final ruling requesting the safe return of the child. It is also important to mention that the firm has advised its clients to obtain advice in such cases to ensure that (i) the Mexican final ruling will be deemed enforceable abroad or (ii) the applicant parent can directly file an application/petition for the safe return of the children.

Free legal advice may be provided by a Mexican public defender (Public Defender Office), if requested by the applicant parent. The Mexican Central Authority is required (i) to be in contact with the foreign central authority to provide the status of the restitution procedure, (ii) follow-up the proceedings before the courts, and (iii) to appoint a member of staff to attend hearings to ensure the fulfilment of the Hague Convention. The Mexican Central Authority does not provide legal advice during the international restitution procedure.

The main guidelines on the application of the Hague Convention have been provided by the Mexican highest courts of justice, which have ruled in binding and persuasive precedents that the main purpose of this international statute is to uphold the best interests of the child principle, which is achieved by the Mexican courts ordering the immediate return of a child to their place of habitual residence, and that the only exceptions or grounds of defence are limited to those specifically listed in Article 13 of the Hague Convention. However, considering that Hague Convention proceedings are handled by the Mexican state courts, such Hague proceedings in several Mexican jurisdictions are not always expeditious since some courts are not respectful, or at best, do not understand, the underlying principles of the Hague Convention.

According to Article 1159 of the National Code of Civil and Family Procedures, once the application has been filed, the judicial authority has 24 hours to rule on its admission. Once it is admitted, it will issue all the necessary precautionary measures and schedule an appointment to listen to the views of the child. The alleged abducting parent will also be ordered to appear before the court with the child and to offer evidence, within the following three days. At a single hearing, the judicial authority shall attempt to reconcile the parties so that the child is voluntarily returned to the place of their habitual residence. If this is not achieved, the presumed abducting parent may assert the applicable grounds of defence and produce all relevant evidence as provided by the Hague Convention. The child shall also be heard. Subsequently, the evidence will be obtained and, lastly, a judgment will be delivered at the same hearing. In this procedure, the due process and the best interests of the child must be respected.

It is difficult to provide the costs for representing an applicant parent for applications under the Hague Convention, since it will depend on the specifics of the case and the location. Likewise, it will also depend on the strategy adopted by the opposing counsel (eg, delaying the proceeding).

Likewise, it is hard to provide a timescale for an application to be determined; this depends on the specifics of the application, the factual background, the evidence, the strategy used by the opposing counsel, court workload, etc. However, it could take between 18 months and three years, considering the levels of judicial review in the Mexican procedural system.

With non-Hague Convention countries, to seek the return of an abducted child, the left-behind parent is to file a petition before the Mexican courts, and arguing the best interests of the child principles, seek international judicial co-operation as provided by the applicable Mexican laws and binding precedents.