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 )

RESPONDENT MARIA del ROSARION MORENO-VAZQUEZ a/k/a MARIA

COONLEY’S POST-TRIAL BRIEF

COMES NOW, the respondent by and through counsel, and submits her brief as 

to the three issues specified by the court in its order of June 12, 2008 which are: (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. What establishes and what is the nature of the father’s patria potestas?

Patria Potestas is defined in Black’s Law Dictionary as

 “In Roman law, paternal authority; the paternal power. This term denotes the 

aggregate of those peculiar powers and rights which, by the civil law of Rome, belonged

to the head of a family in respect to his wife, children (natural or adopted), and any more

remote descendants who sprang from him through males only. Anciently, it was of very 

extensive reach, embracing even the power of life and death, but was gradually 

curtailed, until finally it amounted to little more than a right in the paterfamilias to hold as

his own any property or acquisition of one under his power.”

In the instant case, patria potestas must be defined in terms of its application, if any, to 

Mexican common law.

This case is not the first time that U.S. courts have had to define Mexican patria 

potestas in a case involving Mexican child custody law. There are two cases of note 

which must be analyzed to determine the meaning of Mexican patria potestas in this 

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case. The first is the case of Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000). In that 

case, two U.S. citizens living in Mexico had a child together. No custody rights were 

ever established in Mexico or elsewhere as to that child whom resided for the most part 

with the mother. Id. at 455. The child frequently visited the father and sometimes 

traveled with him. The First Circuit found that under the circumstances both parents 

had custody rights included in patria potestas because “no Mexican Court has given 

Lynn exclusive custody or denied Whallon patria potestas”. Id at 456. The court made 

it clear that where there was a clear determination of custody rights by a court, there 

would be no finding of patria potestas conferring any additional custody rights. Id. at 

458 (n. 9). The First Circuit reviewed the Mexican civil code and found specifically that 

the Code “distinguishes patria potestas from ‘custody’ which may be decided by 

agreement or ‘failing such agreement’ by a judge.” Id at 455.

The other notable case is Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002). In 

that case a divorce settlement between two Mexican nationals provided that the 

divorcing couple’s two children would “remain under the custody and care of their 

mother”. Id. at 945. The mother then left the country and came to the United States 

bringing the children with her. The father sued for their return claiming among other 

things that he had custody rights under Mexican law by virtue of patria potestas. Id at 

951. The Ninth Circuit declined to accept that argument and distinguished Whallon. 

“In Whallon, the court held that, in the absence of a custody agreement, it could rely 

upon patria potestas to determine custodial rights between two parents who had never 

married, and had never entered a formal custody agreement.....Here, unlike the 

situation in Whallon, the parties have executed a formal, legal custody agreement, thus 

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eliminating any basis for relying on patria potestas. Thus we hold that patria potestas 

does not confer “rights of custody” upon a parent given access rights from a custody 

agreement. Id.

Thus, the rule, insofar as both of the circuits which have considered the question, 

is that patria potestas may only confer custody rights where there is no Court order or 

other agreement to the contrary. The existence of an order, or an agreement, renders 

the patria potestas concept a nullity insofar as its application as to custody. Where 

there is no order or agreement such would have to be determined on a case by case 

basis considering the totality of the circumstances as was done in Whallon. 

The U.S. case law establishes that 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. In the case at bar the husband has no

custody rights pursuant to patria potestas. His custody rights as to his son are 

established in Exhibit 6, which is an agreement apparently submitted to the Mexican 

Court which states in the second paragraph that “The child Luis Fernando Castillo 

Moreno will remain under the custody of his mother, Mrs. Maria del Rosario Moreno 

Vazquez both during the proceedings and after the judgment dictated in the present 

voluntary divorce proceedings has been returned”. As to his daughter born during the 

proceedings, the husband states in his petition to modify the custody (Exhibit 4) that 

“Full Custody of the Child Maria Fatima Castillo Moreno currently exercised by C. Maria 

Del Rosario Moreno Vazquez....Taking into consideration that Maria Del Rosario 

Moreno Vazquez has the custody of the children, and that both she and the 

undersigned hold the Patria Potestas”.(Exhibit 4(B)). The husband admits his wife has 

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custody as to both children, therefore, acknowledging an agreement as to his former 

wife having custody of the minor daughter.

The former husband admits to an agreement for the former wife to have full 

custody of the minor female child in that statement. Patria Potestas is therefore 

something less than custody in the case of each child, and the father has only access 

rights pursuant to that doctrine.

II What are the Custodial rights of each parent? How are these rights created 

or established?

Full custodial rights are vested in the mother pursuant to agreement by the 

parties. In the case of the minor son, those rights are vested through the written 

agreement between the parties. (Exhibit 6). In the case of the minor daughter, those 

rights are established by agreement of the parties admitted to in Exhibit 4 wherein he 

asks for full custody, “currently exercised by” the former wife. If there were no 

agreement as to full custody, the same as with the minor son, there would be no reason 

to request full custody be removed from the mother. The rights to full custody in the 

mother were established by agreement of the parties which removes the custody issue 

from the doctrine of patria potestas.

III What, if any distinctions are there under Mexican law between 

custodial rights and patria potestas?

The doctrine of patria potestas includes the general rights of parenting to the two 

parents of a child. It may include rights to custody only where there is no agreement 

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between the parties as to custody or where no court has not issued an order as to 

custody.

Respectfully submitted,

_____//s/Ben Bruner___________

Ben Bruner

Attorney at Law

505 S. Perry Street

Montgomery, Alabama 36104

(334) 323 4463

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document on the 

parties shown below by placing a copy of the same in the U.S. Mail, properly addressed

and postage prepaid or served by electronic means as allowed by this Court.

Done this 24th day of June, 2008.

________//s/Ben Bruner______________

Ben Bruner

Chris Snyder, Esq.

Assistant United States Attorney

P.O. Box 197

Montgomery, Alabama 36101

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