1

 Doc. 37. 

 2 Stephen Zamora et al., Mexican Law 473 (2005) (citing R. DePina Vara, Diccionario del Derecho [Law

Dictionary] 400 (1992) (Mex.)) (attached as Exhibit A); Whallon v. Lynn, 230 F.3d 450, 457 (1st Cir. 2000)

(citing Baja California Sur Civil Code, art. 474) (defining patria potestas as “the relationship of rights and

obligations that are held reciprocally, on the one hand, by the father and the mother or in some cases the

grandparents and, on the other hand, the minor children who are not emancipated.”)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

)

In the Matter of the Extradition of )

MARIA del ROSARIO MORENO-VAZQUEZ ) 3:06-CV-761-MEF-CSC

a/k/a MARIA COONLEY )

)

United States’s Supplemental Extradition Brief

Pursuant to the Court’s June 12, 2008 Order in this case,1

 and the provisions of Rule

44.1 of the Federal Rules of Civil Procedure, the United States hereby files its supplemental

extradition brief on the three issues the Court identified in the Order: 

1. What establishes and what is the nature of the father’s patria potestas?

2. What are the custodial rights of each parent? How are these rights created or

established?

3. What, if any, distinctions are there under Mexican law between custodial

rights and patria potestas?

I. Establishment and Nature of Patria Potestas.

Patria potestas, a concept of parental authority found in many civil law countries, is in

Mexico “[t]he 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 nonemancipated minors with regard to their person and property.”2

 Patria potestas is derived from

Case 3:06-cv-00761-CSC Document 40 Filed 06/24/2008 Page 1 of 7
 3 Dictionary of Greek and Roman Antiquities, 873 (William Smith ed. 1878) (attached as Exhibit B); see

also Whallon, 230 F.3d at 457 n. 7; Black’s Law Dictionary 1188 (7th ed. 1999) (defining patria potestas as

“[t]he authority held by the male head of a family over his children and further descendants in the male line,

unless emancipated,” initially including “the power of life and death”). 

 4 Whallon, 230 F.3d at 457 n. 7. 

 5 Garcia v. Angarita, 440 F. Supp. 2d 1364, 1375 (S.D. Fla 2006) (noting that the Colombian code “sets

forth the rights of patria potestas”); Lalo v. Malca, 318 F. Supp. 2d 1152 (S.D. Fla. 2004) (providing that

Panamanian law gives parents patria potestas rights over the child); Gil v. Rodriguez, 184 F. Supp. 2d 1221,

1225 (M.D. Fla. 2002) (holding that under Venezuelan law, father had patria potestas rights over child born

out of wedlock); Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1358 (M.D. Fla. 2002) (providing

that a married father had patria potestas rights under Argentine law); Pesin v. Rodriguez, 77 F. Supp. 2d

1277, 1286 (S.D. Fla. 1999) (noting that under the Venezuela code father and mother “are vested with the

parental authority until a judicial decision establishes otherwise”) (citations omitted); Sibylla Flugge, The

History of Fathers’ Rights and Mothers’ Duty of Care, 3 Cardozo Women’s L.J. 377, 383 (1996) (discussing

influence of patria potestas on Germany’s code established in the nineteenth century). 

 6 Almost every U.S. case that have interpreted patria potestas from Mexico have only examined the law

of the particular state at issue. See Whallon, 230 F.3d at 456-57 & n.6 (discussing conflicts of law issues and

applying the law of the state of Baja California Sur); Ibarra v. Quintanilla-Garcia, 476 F. Supp. 2d 630, 634-

35 (S.D. Tex. 2007) (applying the law of the state of Nuevo Leon); Basil v. Sosa, No. 8:07-cv-918-T-27TGW,

2007 WL 2264599 (M.D. Fla. Aug. 6, 2007) (applying the law of the State of Jalisco); cf. In re B. del C.S.B.,

525 F. Supp. 1182, 1196 (C.D. Cal. 2007)(applying the law of the state of Guerro but also noting the

similarities of the Federal Code). None, however, deals only with interpreting sections of the Federal Code,

which because of the fact that this case arises out of the Districo Federal in Mexico, is the relevant law.

Thus, the statutes in these cases, while illuminating for a general understanding of the concept of patria

potestas, are not the same as the statute in this case. 

 7 See Código Civil Federal [C.C.F.][Federal Civil Code], art. 412 (Mex.) (“Children under legal age, not

emancipated, shall be under the patria potestas while there is any of the ascendants [e.g., parents or

grandparents] that shall exercise it pursuant to law.”) (unofficial translation attached at Exhibit C); Zamora

2

Roman law and at that time “signified the power which a Roman father had over the persons of his

children, grandchildren, and other descendants . . . . and generally all the rights which he had by

virtue of his paternity.”3 Most civil law countries today, including Latin American countries,

“recognize some form of patria potestas rights,”4 albeit in different forms.5

In the relevant jurisdiction for this case– the Districto Federal (Federal District)6–the

father’s patria potestas is established from moment that the father recognizes the child,

which is usually when the father identifies himself as such on the child’s birth certificate.7

Case 3:06-cv-00761-CSC Document 40 Filed 06/24/2008 Page 2 of 7
et al., supra note 1 (citing C.C.F., arts. 366, 369) (Mex.) (noting that parents may acknowledge parenthood

by voluntary acknowledgment of parenthood); see also Whallon, 230 F.3d at 457 (noting that, under Baja

California Sur’s code, the patria potestas right exists for children born out of wedlock); Telephone Interview

with Mari Aponte, Department of Justice Attaché with the United States Embassy in Mexico City (June 24,

2008).

 8 C.C.F., art. 413 (Mex.) (The right of patria potestas is constricted by “the care and education of the

minors . . . .”) (unofficial translation attached at Exhibit C); C.C.F., art. 422 (Mex.) (“The persons who . . .

have the patria potestas over [the minor, are] obligated to educate him or her conveniently. . .”) (unofficial

translation attached at Exhibit C).

 9 C.C.F., art. 417 (Mex.) (unofficial translation attached at Exhibit C).

 10 Id. (“The personal relationships between the minor and his or her parents can only be limited if there

is a justified cause . . . . Only a judicial order may limit, suspend or lose the right to cohabitate that is referred

to in the preceding paragraph, as well as in the cases of suspension or loss of patria potestas . . . .”). In

Moreno-Vazquez’s Supplemental Brief, she erroneously interprets two cases, Whallon, 230 F.3d 450 and

Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002) and erroneously notesthat “U.S. case law establishesthat

patria potestas is a common law right in Mexico, applicable to both parents which may be superseded as to

custody rights, either by court order or agreement of the parties.” Doc. 39 at 3. 

Moreno-Vazquez misinterprets these cases. Both cases were interpreting patria potestas in

conjunction with the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No.

11,670, 19 I.L.M. 1501 (1980). As one of the elements to establish a case under the Hague treaty, an

aggrieved party must establish that their child wasremoved to orretained in another party country in violation

of the left-behind parent's custodial rights. In interpreting the left-behind parent’s custody rights under the

treaty, a written agreement trumps any other custody rights. This case, however, is not a Hague case, and

normal provisions of the Mexican legal system apply. The United States will further address this issue in its

response brief. 

 11 C.C.F., art. 446 (Mex.) (“The new husband shall not exercise the patria potestas over the children of

the previous marriage.”) (unofficial translation attached at Exhibit C).

3

Patria potestas entails obligations (including care and education of the child8) and rights

(including “the right of cohabiting with their descendants, . . . even if they do not have

custody”9

). Once patria potestas is established, these rights and obligations cannot be abridged or

waived, absent a judicial order by a family judge.10 In fact, a new husband shall never exercise

“patria potestas over the children of the previous marriage.”11

In this case, Moreno-Vazquez’s and Castillo-Tapia’s October 11, 1991 custody agreement

Case 3:06-cv-00761-CSC Document 40 Filed 06/24/2008 Page 3 of 7
 12 See Exhibit 6 of the extradition materials.

 13 See Exhibit 60 of the extradition materials.

 14 See Exhibit B of the extradition materials.

 15 Id. 

 16 Id.

 17 Id.

 18 See Exhibits 60 and 64-65 of the extradition materials.

4

recognized and incorporated their patria potestas over their first child, L.F.C.M.12 By virtue of

Castillo-Tapia’s recognition of M.F.C.M. as his child on her birth certificate,13 his patria potestas

right flowed to her, too. 

Moreover, Moreno-Vazaquez’s actions showed that she knew that her husband possessed

these rights. On November 21, 2003, Moreno-Vazquez appeared before Family Law Judge

Guadalupe Adriana Cruz-Lara to request permission for her minor child to travel to America.14 On

January 30, 2004, Judge Cruz-Lara issued an opinion in which she noted that Moreno-Vazquez and

Castillo-Tapia had two children.15 The decision noted that Moreno-Vazquez swore under oath that

she had gone to the “Ministry of Foreign Affairs to apply for her minor children’s passports and she

was told that . . . the father’s consent or the Judge’s authorization was required . . . .”16

In an attempt to thwart what she knew was her husband’s patria potestas right, MorenoVazquez then falsely stated under oath that since the time of the divorce “she totally ignored [her

husband’s] whereabouts” and had not seen him since 1995.17 The Judge, nonetheless, denied her

request on January 30, 2004. On February 17, 2004, Moreno-Vazquez then obtained passports for

both her children using a forged signature and fingerprint of her husband.18

Case 3:06-cv-00761-CSC Document 40 Filed 06/24/2008 Page 4 of 7
 19 Zamora et al., supra note 1 at 473 (citing C.C.F., art. 283 (Mex.)). 

 20 Zamora et al., supra note 1 at 473.

 21 Id.

 22 Id.

 23 See Exhibit 6 of the extradition materials.

5

II. Establishment and Nature of Custodial Rights.

Under Mexican law custody rights are established by a family law judge in the divorce

decree (sentencia de divorcio).19 “[C]ustody (called guarda y custodia in most Spanishspeaking countries) refers to the personal care of a minor child . . . , and it is understood that

the ex-spouse who takes on this obligation is entitiled to child support from the other exspouse.”20 “Custody is generally understood as a temporary right.”21 “Mexican judges

usually award custody to the mother, especially in the case of young children, with the father

being granted visitation rights or temporary custody for periods of vacation, etc.”22

In this case, the October 11, 1991 custody agreement followed the typical form. The

agreement recognized and incorporated the patria potestas of the couple’s first child, L.F.C.M.

Additionally, it provided Moreno-Vazquez custody of L.F.C.M. and provided her with alimony and

a home. It further provided Castillo-Moreno the right to “visit his son . . . every day of the week .

. . , to pass by for him to take [him] to school. . . ,” weekend visitation rights every fifteen days,

“fifteen days during the Summer vacation,” and “half of the Winter vacation period.”23 MorenoVazquez’s removal of L.F.C.M. from Mexico was in violation of this valid custody

agreement. 

Case 3:06-cv-00761-CSC Document 40 Filed 06/24/2008 Page 5 of 7
 24 Id.

 25 Id.

 26 Id.

 27 C.C.F., art. 416 (Mex.) (unofficial translation attached at Exhibit C).

6

III. Distinctions Between Custodial Rights and Patria Potestas.

Mexican law distinguishes between “who shall have custody of the children” and

“who shall exercise parental authority” (patria potestas).24 “The judge normally awards

patria [potestas] to both parents upon divorce, and only in extreme cases, usually based on

lifestyle, is one parent deprived of parental authority.”25 Once the family judge issues the

divorce decree, both parents may have parental authority (patria [potestas]), but only one

may have custody.”26 As Articulo 416 of the Código Civil Federal notes, “[i]n case of

separation of the ones who exercise the patria potestas, . . . both shall continue with the

performance of their obligations and they may agree upon the terms particularly related to

the care and custody of the minor children.”27

Thus, in this case Moreno-Vazquez took her children away from their father in

violation of their custody agreement for L.F.C.M. and against her husband’s patria potestas.

She must be extradited to face her pending charges in Mexico.

Respectfully submitted this the 24th of June, 2008.

LEURA G. CANARY

UNITED STATES ATTORNEY

/s/ Christopher Snyder

CHRISTOPHER A. SNYDER

Case 3:06-cv-00761-CSC Document 40 Filed 06/24/2008 Page 6 of 7
7

Assistant United States Attorney

131 Clayton Street

Montgomery, AL 36104

Phone: (334)223-7280

Fax: (334)223-7135

E-mail: christopher.a.snyder@usdoj.gov

/s/ Andrea Tisi

Andrea Tisi

Senior Trial Attorney

Office of International Affairs

Criminal Division

U.S. Department of Justice

Phone: (202) 353-4469

Fax: (202) 514-0080

E-mail: Andrea.Tisi@usdoj.gov

Certificate of Service

I hereby certify that on June 24, 2008, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system, which will send notification of such filing to

the following: Ben Elton Bruner. 

/s/ Christopher Snyder

CHRISTOPHER A. SNYDER

Case 3:06-cv-00761-CSC Document 40 Filed 06/24/2008 Page 7 of 7
Case 3:06-cv-00761-CSC Document 40-2 Filed 06/24/2008 Page 1 of 11
UNIVERSITY PRESS

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It furthers the University's objective of excellence in research, scholarship,

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Oxford is a registered trade mark of Oxford University Press

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Published in the United States

by Oxford University Press Inc., New York

© S. Zamora, J.R. Cossio, L. Pereznieto, J. Roldan-Xopa and D. Lopez, 2004

Published new as Paperback, 2005

The moral rights of the authors have been asserted

Crown copyright material is reproduced under Class Licence

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First published 2004

All rights reserved. No part of this publication may be reproduced,

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Oxford University Press, at the address above

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and you must impose the same condition on any acquirer

British Library Cataloguing in Publication Data

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Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India

Printed in Great Britain

on acid-free paper by

Biddies Ltd., King's Lynn

ISBN 0-19-826777-0 (Hbk.)

ISBN 0-19-928848-8 (Pbk.)

13579108642

We wish to de

citizens of Me

by a balance

sympathy as to

to the negative

the legal tradii

Case 3:06-cv-00761-CSC Document 40-2 Filed 06/24/2008 Page 2 of 11
470 Mexican Law

parties wish to provide for separate property (separation de bienes) of l

acquired after marriage, this may be accomplished by the parties signttt

ulaciones to this effect, and including a list of the separate property ,

spouse 44 As already noted, if the bride and groom contract marriage

entering into a contract of capitulaciones, the marital property acquire

marriage shall be jointly owned, but property that was separately o~<l

either of the parties prior to marriage shall be deemed separate property

The prenuptial agreement establishing marital property rights

amended or terminated by joint agreement of the parties, who may i

from joint ownership to separate ownership, or vice versa (FCC Article I

addition, the agreement can be terminated by one spouse, provided that

ation is based on certain grounds.45 (Property rights after the death of 4

are discussed in the following Chapter, under the topic of inheritance.!

3.3. Annulment and Divorce

Mexican law provides for annulment of marriage in certain instances

in CCDF Articles 235-263, which include cases involving incest, coerc

existence of a prior marriage that is still valid. Marriage can also be an

for failure to follow the formal procedures dictated by the CCDF:46

II. A list of specific personal property that each spouse brings into sue

partnership;

III. An itemized report of all debts that each spouse has upon entering, o

marriage, stating whether the [marital] partnership shall be responsible

them or only for those [debts] that are incurred during marriage, whrtb

by both spouses or by either one of them;

IV. An express declaration as to whether the marital partnership is to indnwk

all assets of each spouse or just part of them, specifying in the scon

instance which assets are to become jointly owned;

V. An explicit declaration as to whether the marital partnership is to inclt:

all assets of the spouses or just their products. In either case, the part s

the assets or of their product belonging to each spouse shall be clew

determined;

VI. A declaration as to whether the product of the work of each spouse 4t

belong exclusively to the one that performs it, or whether he or +l

shall share that product with the other spouse and in what proportion [

shall be shared];

VII. A definitive declaration as to who shall be the administrator of 4

partnership, clearly setting forth the powers conferred upon him or her;

VIII. A declaration as to whether future assets that may be acquired by tin

spouses during matrimony belong exclusively to the acquiring party,

whether they should be divided up among them [both spouses] and in wlrr

proportion;

IX. The rules for liquidation of the marriage partnership.

44 See CCDF Articles 207-217.

45 See CCDF Article 188: termination at the request of a spouse if the adminrsu

partner, through dishonesty or wilful negligence, seriously diminishes the joint estate;

administering partner, without express consent of the spouse, cedes joint property to cret

if the administering partner files for bankruptcy, or is declared bankrupt; or for other tr

considered justifiable by a competent agency having jurisdiction.

46 CCDF Article 249. See generally Baqueiro and Buenrostro, supra note 42 at 127 r

Case 3:06-cv-00761-CSC Document 40-2 Filed 06/24/2008 Page 3 of 11
de bienes) of property

e parties signing capitirate property of each

:tact marriage without

roperty acquired after

separately owned by

parate property.

perry rights may be

ies, who may convert

(FCC Article 186). In

provided that terminthe death of a spouse

inheritance.)

in instances set forth

g incest, coercion, or

can also be annulled

CCDF:46

ise brings into the

upon entering into

11 be responsible for

marriage, whether

tership is to include

ying in the second

ership is to include

:r case, the part of

tse shall be clearly

f each spouse shall

vhether he or she

that proportion [it

ninistrator of the

tpon him or her;

e acquired by the

cquiring party, or

)uses] and in what

if the administrating

the joint estate; if the

property to creditors;

t; or for other reasons

Tote 42 at 127 et seq.

Family Law and the Law of Persons 471

For a traditionally Catholic country, Mexico has adopted quite liberal rules

governing divorce. This was not always so. The first Civil Codes of Mexico,

adopted in 1870 and 1884, failed to include any provision for divorce. Divorce

first appeared in the Law of Family Relations of 1915,47 and the CCDF of 1932

included provisions on divorce (Articles 266-291) that remain in force with few

changes to this day. The existence of a liberal regime has not translated into

a high incidence of divorce, however: the National Institute of Statistics and

Demographics (INEGI) calculates that the divorce rate in Mexico was 8.7 per cent

in.1970, but actually declined to 6.5 per cent in 1998.48 Mexico continues to

be a society in which the importance of marriage and family in a Catholic country underlies a strong societal antipathy to divorce. Of course, these values are

less evident in the large population centres of Mexico City and Monterrey,

where divorce has become increasingly common.

Divorce in Mexico is governed by Articles 266-291 of the FCC, which has

been adopted in most of the thirty-one Mexican States. In 2002, however, the

Legislative Assembly for the Federal District made numerous changes to its

rules of marriage and divorce, adopting a Civil Code for the Federal District

that is separate from the Federal Civil Code.49 These deviations were intended

to modernize the civil code provisions, but did not make a fundamental change

in divorce law.

Mexican law provides for two types of divorce: divorce by mutual consent,

and divorce for cause. Divorce by mutual consent (divorcio voluntario, also

called divorcio administrativo) is governed by FCC Article 272; such a divorce

may be granted by an administrative judge, or juez de Registro Civil, in the

place of domicile. Divorce by mutual consent may be granted if at least one year

has lapsed since the marriage took place, and only when the parties have no

children, and have decided mutually to submit to an administrative divorce

(FCC Articles 266, 267 (section XVII), and 272-276). Divorce for cause (divorcio necesario) is authorized by FCC Article 267, may occur upon the petition

of one spouse, and may be based on any one of the twenty different grounds

for divorce established in FCC Article 267.50 Both types of divorce require the

47 See supra, text following note 6.

48 According to statistics of INEGI, the government census bureau, the divorce rate in

Mexico was (divorces per 100 marriages) 3.2 in 1971, 4.4 in 1980, 7.2 in 1990, 7.4 in 2000,

and 8.6 in 2001: www.inegi.gob.mx/informacion estadfstica (site visited Jan. 2004).

a9 See Chapter 14 above at text accompanying notes 30-34.

so FCC Article 267 provides as follows:

[The following] are grounds for divorce:

1. Duly proven adultery committed by one of the spouses;

H. The wife giving birth, during matrimony, to a child conceived before entering

into this contract, and who is declared illegitimate by a judge;

III. The husband proposing to prostitute his wife, not only when the husband

does so directly on his own but [also] when it is proven that he has received

money or any other remuneration for the express purpose of permitting

someone else to have intercourse with his wife;

W. One spouse inciting or using violence towards the other to [get her or him]

to commit a crime, even though the crime is unrelated to sexual depravity or

excess;

Case 3:06-cv-00761-CSC Document 40-2 Filed 06/24/2008 Page 4 of 11
472 Mexican Law

V. The husband or the wife committing immoral acts for the purpose of

corrupting their children, as well as tolerance of corruption;

VI. Contracting syphilis, tuberculosis or any other chronic or incurable

disease, that may also be contagious and hereditary, and [a spouse] being

affected by incurable impotence after entering into marriage;

VII. Suffering from incurable mental illness, provided that the spouse has been

committed or declared mentally ill by a judge (declaracion de interdicto);

VIII. Absence from the marital home for more than six months without good

reason;

IX. Absence from the marital home due to a cause that is sufficient to file for

divorce, if the separation continues for more than a year without the

spouse that separated [ever] filing for divorce;

X. A legal declaration of absence, or a legal declaration of the presumption

of death, in [certain] cases of exception it [a legal declaration of the

presumption of death] is not needed for the declaration of absence to be

admissible;

XI. Cruel treatment, threats or serious defamation of one spouse to another;

XII. Unjustified refusal of a spouse to fulfil his or her obligations as set forth

in Article 164, without it being necessary to first exhaust the remedies

[intended to bring about] their fulfilment, as well as non-compliance,

without good cause, by either of the spouses, with a final judgment in the

case of Article 168;

XIII. A slanderous accusation made by one spouse against the other, which is

a crime that carries a maximum sentence of more than two years in

prison;

XIV. One of the spouses committing a crime, other than political crimes, that

brings shame upon the persons, for which he or she must serve a prison

term greater than two years;

XV. Habitual gambling or intoxication or improper and persistent use of

enervating drugs, when this [activity] threatens to ruin the family or constitutes continuous reason for marital discord;

XVI. A spouse committing an act against someone physically or against their

property that would be punishable, when it [the act] involves a stranger,

provided that such an act is punishable by law with a prison term greater

than one year;

XVII. Mutual consent;

filing of a petition for divorce (demanda de divorcio) before a family law judge

(juez de lo familiar) in the jurisdiction in which the married couple resides.51

Divorce dissolves the marital bond, and also results in the separation of

jointly owned marital property. Where the parties have entered into a prenuptial agreement, the separation of property must take place before a notary

public, in accordance with the provisions of the agreement. Where no such

rt,ement exi,,

liC :.i decree

N clnlunal prc

t two spous

In the divo

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(cont.)

XVIII. Separation of spouses for more than two years, independently of the

original motive of the separation that may be argued by either one of

them [the spouses];

XIX. One of the spouses committing violent family conduct against the other

forth by Article 323 of this Code;

XX. Unjustified non-compliance with decisions of administrative or judicial

authorities that have been issued so that the spouse obliged to do so

corrects acts of family violence toward the other spouse or the children.

or towards the children of both or of one of them. For the purposes of

this article, family violence is understood in accordance with the terms set

51 When spouses are separated and living in different jurisdictions, the petition for divorce

may be filed in the jurisdiction in which either spouse resides.

Regards

The tern

who

icapacit)

Ike Pina

When c

ii'iivide child

s The ten

Case 3:06-cv-00761-CSC Document 40-2 Filed 06/24/2008 Page 5 of 11
. law judge

esides.51

aration of

a prenupa notary

e no such

pose of

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divorce

Family Law and the Law of Persons 473

agreement exists, the separation of property is overseen by the judge, who will

issue a decree declaring the separate property of each spouse, and dividing any

communal property acquired during the marriage in an equitable way between

the two spouses.

In the divorce decree (sentencia de divorcio), the judge provides for the

amount of child support; decides who shall exercise parental authority (patria

potestad); and decides who shall have custody of the children (FCC Article

283). Mexican law distinguishes between the latter two concepts. Patria potestad (in Latin, patria potestas)52 or parental authority, derives from Roman law

and implies `[t]he 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 minors53 with regard to

their person and property'.54 The judge normally awards patria postedad to

both parents upon divorce, and only in extreme cases, usually based on lifestyle,

is one parent deprived of parental authority. On the other hand, custody (called

guarda y custodia in most Spanish-speaking countries) 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.55

Custody is generally understood as a temporary right. Mexican judges usually

award custody to the mother, especially in the case of young children, with

the father being granted visitation rights or temporary custody for periods of

vacation, etc. Once the divorce decree is issued, both parents may have parental

authority (patria potestad), but only one may have custody; or one of the parents

may lose parental authority as well as custody and the other may only have

visitation rights.

In cases of contested divorce, `the judge, taking into consideration the

circumstances of the case, such as the spouses' capacity to work and their economic situation, shall issue a judgment sentencing the guilty party to payment of

alimony [alimentos] to the innocent party"' (FCC Article 288). In cases of

divorce by mutual consent, the woman shall have the right to receive alimony

over a period of time equal to the length of the marriage, provided that she

lacks sufficient income to support herself and does not remarry or enter into a

common law marriage (FCC Article 288). The same conditions apply to the

man, should he be unable to work.

52 Regarding patria potestad, see: Baqueiro and Buenrostro, supra note 42 at 223 et seq.

53 The term `non-emancipated minor' refers to persons who are under the age of adulthood

(18), or who have been declared by a judge to be legally incompetent due to a mental or physical incapacity.

54 De Pina Vara, R., DICCIONARIO DE DERECHO (Mexico: Porrua, 1992) at 400.

55 When custody is awarded to a third party, such as a grandparent, both ex-spouses must

provide child support to the third party.

56 The term alimentos refers to a sum of money deemed by the judge to be necessary for the

maintenance and support of the divorced spouse.

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474 Mexican Law

According to FCC Article 288, if divorce gives rise to damages or losses

suffered by the innocent spouse, the guilty spouse shall be held responsible for

them `as author of the unlawful act (becho ilicito)', i.e. as someone liable for

a civil wrong that gives rise to damages under the civil code.57 For example,

a victim of spousal violence could bring a civil action against the wrongdoer

under FCC Article 1910 (CCDF Article 1910) for injuries suffered as a result of

the violence.58

3.4. Filiation

The Supreme Court of Mexico has defined filiation as the `origin of children

with respect to the parents, which brings as a consequence different correlative

and reciprocal rights and obligations, giving rise to parental authority (patria

potestad)'.59 Paternity and filiation are intimately connected to the reciprocal

rights and obligations that exist between spouses and between parents and

children, affecting individuals and their property interests.60

The CCDF recognizes four main types of filiation, or parent-child relationship:61

(i) legitimate filiation or matrimonial filiation (filiation matrimonial), the

result of a child being born in wedlock;

(ii) illegitimate, or extra-marital filiation (filiation extramatrimonial) refers

to cases in which a child is born out of wedlock, and the father-child relationship is recognized, either through voluntary recognition by the father,

or by a court ruling;

(iii) legitimation (legitimation) refers to cases in which a couple, after marriage,

recognize that they are parents of a child born prior to their marriage; and

(iv) adoption, in which, unlike the first three types of filiation, there is no

biological connection between the parents and the minor child, and a

relationship of family kinship is legally granted to the adopting parents and

adopted son or daughter as if they were the biological parents.

3.4.1. Legitimate Filiation

The FCC operates under a strong assumption that the offspring of spouses are

children born in wedlock. Children born within 180 days of the date of contracting marriage, and children born within the three hundred days following

the dissolution of marriage, are presumed to be legitimate children.62 The

57 The topic of hechos ilicitos, similar to common law tort liability, is discussed below in

Chapter 19.

58 For a discussion of moral damages, see Chapter 17 below, section 6.4.3.

59 SJF, 5a, T. XXV, p. 816. 60 Ibid.

61 See generally Elias A.E., PERSONAS Y BIENAS EN EL DERECHO CIVIL MEXICANO (Mexico:

Poriua, 1997) at 21 et seq.

61 CCDF Article 324. Dissolution must result from the death of the husband, an annulment

of the marriage contract, or divorce. In the last two instances, the term of 300 is counted from

the day on which the spouses actually separated pursuant to the judicial decree.

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Case 3:06-cv-00761-CSC Document 40-2 Filed 06/24/2008 Page 7 of 11
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Family Law and the Law of Persons 475

presumption of children being born in wedlock is established in almost absolute

terms by the FCC: a father cannot fail to recognize children born in wedlock,

with only one exception: where it was physically impossible for the husband to

have had intercourse with his wife during the first 120 days of the 300 days preceding the birth (FCC Article 325). If the facts of this exception are not proven,

then the, father must recognize the child even if he alleges that the mother

committed adultery, and despite the fact that the mother affirms that the child

is not the husband's.63

The FCC provides for settlement of paternity disputes through compromise

or arbitration with regard to financial rights stemming from matrimonial

filiation (FCC Article 339).

3.4.2. Establishing the Legitimacy of Children

According to FCC Article 354, `[sjubsequent marriage of the parents makes

the children born before celebration [of marriage] considered to be born in

wedlock'. The FCC, however, makes establishing the legitimacy of children born

out of wedlock contingent not only upon the parents subsequently getting married, but also on the parents expressly recognizing the child or children before

gettingmarried or during the marriage,64 with `both [parents] recognizing [the

child or children] in any case [either] together or separately' (FCC Article 355).

Even though recognition may be given subsequent to the marriage ceremony, the

children's rights are recognized to exist as of the date that the marriage is entered

into (Article 357), and this right is extended to the descendants of children who

pass away before the marriage is formalized (FCC Article 358).65

3.4.3. Filiation of Children Born Out of Wedlock and Proof of Paternity

The FCC recognizes three types of filiation of children born out of wedlock.

The first type is maternal filiation, based on the fact of a mother's giving birth

to a child, which establishes legal filiation to the mother (FCC Article 360). The

second type of filiation of children born out of wedlock involves voluntary

acknowledgement of the paternity of a child. The third type of filiation involves

a declaration of paternity issued by a court of law.

Voluntary acknowledgement of filiation The power to acknowledge the

paternity of a child is far-reaching under the FCC. For example, parents may

acknowledge parenthood of an unborn child or a child who has died and left

63. If a woman remarries before 300 days following the dissolution of a prior marriage (FCC

Article 158), and has a child within that period (FCC Article 334), the law considers the

husband from thedissolved marriage to be the father of the child. However, if the child is born

after 180 days of the second marriage, then the legal presumption is that the child is from the

second marriage, even if the birth occurred within 300 days of dissolution of the first marriage.

FCC Article 334, Section II. 64 Baqueiro and Buenrostro, supra note 42 at 203 et seq.

6s The Mexican Supreme Court, in a case involving a request of inheritance, has held that

birth certificates may not be sufficient, in and of themselves, to prove a child's filiation to his or

her parents. It may also be necessary for the moving party to produce a copy of the parents' marriage certificate. Amparo directo 500195; SJF, 9a, T. II, October 1995, Tesis X1. 2p. 18 C, p. 551.

Case 3:06-cv-00761-CSC Document 40-2 Filed 06/24/2008 Page 8 of 11
476 Mexican Law

descendants (FCC Article 364). Nonetheless, the effects produced by voluntary

acknowledgement of parenthood only apply to the person who acknowledges

paternity of the child, and are not extended to the other progenitor (FCC

Article 366).66 Voluntary acknowledgement of paternity of a child born out of

wedlock must be made by means of one of the forms specifically set out in FCC

Article 369.67

If the person who acknowledges paternity of child born out of wedlock is

married, he or she may not acknowledge paternity and take a child born outside of marriage into the matrimonial domicile without prior permission from

his or her spouse (FCC Article 372). If a married woman gives birth during

marriage to a child fathered by someone other than her husband, the biological

father is not permitted to acknowledge paternity of the child, unless the

husband refuses to recognize paternity and a court order has also been issued

declaring that the child is not the husband's (FCC Article 374).

Court-ordered recognition of filiation The FCC grants to an illegitimate

child, or to the descendant of an illegitimate child, the opportunity to prove

paternity (that the child is the offspring of the biological father) through an

investigation conducted pursuant to FCC Article 382.68 An illegitimate child or

his or her descendants can also investigate and attempt to prove maternity, `but

the investigation will not be permitted when it is designed to attribute maternity

66 See also CCDF Article 370: `When the father or the mother separately recognize children,

he or she may not, at the time of the act of recognition, reveal the name of the person with

whom he or she had the child, nor state any circumstances whereby this person could be

identified. Words [to this effect] contained in the revelation shall be expunged sua sponte [on

the court's initiative], so they will remain absolutely illegible.' The Supreme Court applied this

provision in Valdovinos de Barrero Maria, 28 October 1930; SJF, 5a, T. XXX, p. 1188.

67 Any of the following documents is sufficient: birth certificate; a special certificate (acta

especial) issued by a judge of the Civil Registry; a public document [official record] issued

before a notary public, or an official agent (corredor publico); a last will and testament; or

evidence of a direct or express confession before a court of law.

68 See CCDF Article 382:

The investigation of paternity of children born out of wedlock is permitted:

1. In cases of abduction, statutory rape, and rape, when the date of the crime

is consistent with that of conception;

II. When the child has enjoyed the status of being the son or daughter of the

alleged father;

III. When the child was conceived during the time in which the mother lived

under the same roof as the alleged father, as a married couple;

IV. When the son has written evidence (principio de prueba) in his favour

against the alleged father.

As mentioned in the previous Chapter, in 1932 the CCDF departed from the

prior versions of the Civil Code by providing for recognition of children born out

of wedlock. The 1932 Code finally recognized the widespread practice in

Mexican society, dating back to colonial times, of children being born outside

of marriage. Although having children outside of marriage may have been

condemned officially by the Catholic Church and by conservative society in

general, it was nevertheless common, particularly in rural areas. To alleviate

the problems arising from illegitimacy, the Civil Code of 1932 for the first time

permitted illegitimate children to use the courts to establish their parentage and

related rights.

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Case 3:06-cv-00761-CSC Document 40-2 Filed 06/24/2008 Page 9 of 11
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Family Law and the Law of Persons 477

{of an illegitimate child] to a married woman'.69 This provision is an example

of the reverential status granted to the Mexican mother;70 it is plainly calculated

to protect married women and reinforce traditional family values.

The FCC provides important rights to illegitimate persons whose parentage

is recognized by the biological parent or parents. Upon securing a favourable

court order, children born out of wedlock are entitled to bear the first and last

name of the father and mother who recognize them as well as to receive child

support and to inherit property from their estate (FCC Article 389). Since this

provision gave the same status to children born out of wedlock as to those born

in wedlock, the CCDF of 1932 was harshly criticized at the time of its adoption.

Nevertheless, the Supreme Court has been liberal in recognizing the rights of

illegitimate children.71

The CCDF also recognizes the legal effects of another widespread practice

in Mexican society, concubinato, commonly known in the United States as

common law marriage. Concubinato is recognized not only in the Civil Codes

but also in other laws,72 and children of common law marriages have rights that

are similar to those that arise under marriage. According to CCDF Article 383,

the following children are `presumed to be the children of the common law husband (concubinario) and wife (concubina): I. Children born after 180 days from

the time the common law marriage began; and II. Children born within 300 days

following the day common life ceased between the common law husband and

wife'. However, in order for rights under a common law marriage to be recognized, neither spouse may be a party to a valid marriage during the concubinato.

The 2002 Civil Code adopted for the Federal District added Chapter XI

of Book Five, in which certain rules were added that could be interpreted as

furnishing property rights for spouses in a common law marriage. Thus, CCDF

Article 291 ter states that `the rights and obligations inherent in a legal marriage

shall govern a common law marriage, to the extent applicable'. Similarly,

CCDF Article 291quater states that `common law marriage establishes alimony

and inheritance rights between common law spouses'. These provisions could

be interpreted as granting property rights to a common law spouse, although

no case-law has yet been generated interpreting them.

69 CCDF Article 385. Despite the prohibition quoted in the text, an investigation may proceed

if the alleged maternity can be inferred from a civil or criminal judgment. CCDF Article 386.

70 The Mexican mother is revered not only as the foundation of a strong family, but the

bedrock of society. If one hears that someone `no tiene madre' (does not have a mother), it

means that whatever the person has done is beyond the pale.

71 In 1969, the Supreme Court ruled that although CCDF Articles 352 and 353, which preserve the property rights of children, apply expressly to children born in wedlock, nevertheless

'they provide equal protection to natural children [i.e., biological or illegitimate children], by

virtue of the well known principle of analogous application, where the same legal reason

exists, the same provision of the law should exist'. Apendice 1917-1985, SJF, 7a, T. VI, Cuarta

Parte, Tercera Sala, p. 71 (26 June 1969).

72 See, for example, Article 501, section III of the Federal Labour Law, D.O. 21 Dec. 1995,

which recognizes the rights of the common law wife in the case of the death or disability of

her common law husband. See also the Social Security Law, D.O. 21 Dec. 1995, Article 130.

Case 3:06-cv-00761-CSC Document 40-2 Filed 06/24/2008 Page 10 of 11
478 Mexican Law

Finally, the reader should note that children also have certain rights with

regard to recognition of filiation. For example, should the child who is the

subject of an act of recognition be of adult age, he or she must expressly consent

to recognition (FCC Article 375). On the other hand, should the child be

a minor, consent must be given by the guardian and, should no guardian have

been previously appointed, the court shall appoint one specifically for this pur -

pose (FCC Article 375). If filiation of a minor child was recognized by a

guardian, the child may `challenge the recognition when he or she reaches legal

age' (FCC Article 376).

Custody of children born out of wedlock The Civil Code has special provisions concerning the custody of children born out of wedlock. For instance,

when parents who do not live together both recognize a child in the same

proceeding, an agreement must be reached on which parent shall be granted

custody. Should the parents fail to reach such agreement, the judge shall decide

who has custody (FCC Article 380). Appellate courts have held that when

children are born out of wedlock and the parents later separate, and do not agree

on custody, a family court judge shall have the power to award custody according to the best interests of the child.73

If the parents of a child born out of wedlock recognize the child at separate

times, custody shall be exercised by the first parent to recognize the child, unless

the parents agree on who shall have custody and their agreement is approved

by the court (FCC Article 381).

3.4.4. Adoption

The Mexican law of adoption74 has undergone significant changes in recent

years, due to Mexico's adherence to several international conventions that

directly or indirectly influence the laws of adoption.7' As a result, in 1998 the

Mexican Congress adopted reforms to the Civil Code for the Federal District,

adding Article 410-E, to modernize the law governing this subject matter;76 this

change has been carried over into CCDF Article 410-E.

Under the FCC, both married and unmarried adults of twenty -five years and

older are qualified to adopt in Mexico, provided that the age difference between

73 Amparo directo 3080/90; Semanario judicial de la Federation, Octava Epoca,T. VI Segunda

Parte-1, p. 200.

74 Both minors and incompetent adults are treated in the chapter on adoption in the Civil

Code. Nonetheless, we refer in this Chapter of the book specifically to minors, since they are

the subject of most adoptions.

75 See the Inter-American Convention on Conflicts of Laws regarding Adoption of Minors,

in effect for Mexico as of 21 August 1987; the U.N. Convention on the Rights of Children, in

effect for Mexico as of 25 January 1991; and the Hague Convention on the Protection

of Minors and Cooperation regarding International Adoption, in effect in Mexico as of 24

October 1994.

See generally Siqueiros, J.L., `La convention relativa a la protection de menores y a la cooperacion en materia de adoption internacional', 23 JURIDICA (UNIVERSIDAD IBEROAMERICANA)

313 (1994). See also Pereznieto and Silva, supra note 10, at chapter 8.

76 D.O. 28 May 1998.

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[UNOFFICIAL TRANSLATION] 

Federal Civil Code 

Official Gazette of the Federation of the 26th of May, 14th of July, 3rd and 31st of 

August, 1928. Last amendment published in the Official Gazette of the Federation 

on April 13th, 2007. 

The Mexican Constitutional President has been so kind as to submit to me the following 

Decree: 

PLUTARCO ELIAS CALLES, President of the United Mexican States, to Mexicans, 

to be known: 

That in the exercise of the powers vested in me by the Congress of the Union by means 

of decrees dated January 7th and December 6th, 1926 and January 3, 1928; I hereby issue 

the following decree: 

FEDERAL CIVIL CODE 

FIRST SECTION 

Individuals 

EIGHTH TITLE 

Patria Potestas 

CHAPTER I 

Effects of the Patria Potestas Regarding the Children as Individuals

Article 411. In the relationship among the ascendants and descendants, mutual respect 

and consideration should prevail, whatever their status, age and condition is. 

Article 412. Children under legal age, not emancipated, shall be under the patria 

potestas while there is any of the ascendants that shall exercise it pursuant to law. 

Article 413. Patria potestas is exercised over the persons and assets of the children. Its 

exercise is subject, regarding the care and education of the minors, to the fashions 

provided to do so by resolutions according to the law on social prevention of infants 

criminality in the Federal District. 

Article 414. Patria potestas over the children is exercised by the parents; should one of 

the parents fail to exercise the patria potestas for any reason, then patria postestas is 

exercised by the other parent. If both parents are absent or any other circumstance 

foreseen in this Code, the ascendants in second grade shall exercise the patria potestas 

over the children, in whichever the order determined by the familiar judge, having into 

consideration the circumstances of the case. 

Article 416. In case of separation of the ones who exercise the patria potestas, they both 

shall continue with the performance of their obligations and they may agree upon the 

terms particularly related to the care and custody of the minor children. Should the 

parents disagree, the family Judge shall resolve whatever is appropriate by hearing the 

Case 3:06-cv-00761-CSC Document 40-4 Filed 06/24/2008 Page 1 of 3
Public Prosecutor, regardless the foreseen in article 94 of the Civil Procedure Code for 

the Federal District. 

In this case, based on the best interests of the minor, the latter shall remain under the 

care and attention of one of them. The other parent is obligated to cooperate for their 

nourishment and shall retain the right of supervision and cohabitation with the minor 

child, in keeping with the modalities foreseen in the judicial agreement or resolution. 

Article 417. The persons, who exercise the patria potestas, even if they do not have the 

custody, have the right of cohabiting with their descendants, unless there is a danger to 

do so. The personal relationships between the minor and his or her parents can only be 

limited if there is a justified cause. Should one of the parents oppose the relationship, 

then the family judge, at the request of either of the parents, may resolve whatever is 

appropriate to the best interests of the minor. Only a judicial order may limit, suspend or 

lose the right to cohabitate that is referred to in the preceding paragraph, as well as in 

the cases of suspension or loss of patria potestas, in keeping with the modalities that are 

established in the judicial agreement or resolution for the exercise of patria potestas. 

* * * 

Article 422. The persons who have the minor under their custody or have the patria 

potestas over him or her, is obligated to educate him or her conveniently; whenever 

comes to the knowledge of the Tutorial Local Committee or of any other administrative 

authority, that the said persons do not perform the aforementioned obligation, the 

authorities shall inform the Public Prosecutor in order for him/her to proceed according 

to law. 

* * * 

CHAPTER III 

“Modes in which Patria Potestas is Suspended and Terminated” 

Article 444. Patria Potestas is lost by judicial resolution: 

I. Whenever the person who exercises it is expressly condemned to lose such 

right. 

II. In case of divorce, having into consideration the foreseen in article 283. 

III. When, given the depraved behavior of the parents, mistreating or failing to 

perform their obligations, the health, security or morality of the children is in 

risk, even when those facts are not punished by the criminal law. 

IV. Should any of the parents exposes his or her children or abandon them for 

more than six months. 

V. When the person who exercises it is condemned for the commission of an 

intentional crime in which the minor is the victim; and 

VI. When the person who exercises it is condemned two or more times for a 

grave crime. 

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Article 444 bis. Patria potestas may be limited when the person who exercises it 

commits familiar violence foreseen in article 323 ter of this code, against the 

persons over the ones he or her exercises it. 

Article 445. The mother or grandmother, who marries for second time, does not lose 

because of it the patria potestas.

Article 446. The new husband shall not exercise the patria potestas over the children of 

the previous marriage. 

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