Legal Question in Family Law in Mexico
Mexican/US Child Custody
Here is the situation:
There are 2 children (11&13) whose native country and current residence is Mexico. The father has been working in Minnesota under a L Visa for 3 years. Though he has filed divorce papers, proceedings were not able to commence until the end of July since that was the last time the couple co-habitated.
In the beginning of July the mother was admitted into a psychiatric hospital and the maternal grandparents took the children into their home. They did not inform the father. Once he was informed by a family friend, he made arrangements and arrived in Mexico within the week. He currently has the children and is staying with a relative. He would like to take the children back to the US for 1 year while the mother recuperates but needs her permission to take the children out of the country. Here are the immediate questions:
1. Can the divorce proceedings commence while the wife is in a psych hospital?
2. If the mother gives permission to him to take the children, can the maternal grandparents challenge it because the mother is in a psych hospital?
3. Considering that the father needs to return to the US, is it likely that the maternal grandparents would win custody if they filed for it?
1 Answer from Attorneys
Re: Mexican/US Child Custody
Thank you for your question. Your question raises numerous, complex jurisdictional and factual issues that require far more space than is permitted in this forum. Nevertheless, here are the basics.
First, ignoring the fact that the mother is in Mexico, yes a Minn. court could proceed with a divorce proceeding if she is in a psychiatric hospital. The more complicated question, however, is not whether a proceeding can be commenced in Minn. (As long as one party is a resident of the state, the state has jurisdiction over the marriage relationship and can grant a divorce, even if the other party is not in Minn or subject to the state's jurisdiction.) The more difficult issue is whether the court will have jurisdiction over the children. More facts are required to determine whether the UCCJA would give Minn. jurisdiction.
Second, whether the grandparents can object if she gives permission will depend on the law of their jurisdiction (ie. Mexican law, which may vary from state to state within that country).
Your final question (who would win in a fight between the grandparents and father) is simply impossible to answer at this time, and would be mere speculation. The more important question may be whether a favorable order granted by a Minn. court will be honored by Mexico, if the children are not here. Although subject to the Hague Convention (as it relates to private judgments), enforcing an American order in Mexico is very difficult.
The father needs an attorney if he intends to proceed with this matter. Call if you have further questions or need assistance. He will need to consult a lawyer promptly, since time is not working in his favor if the children remain outside the country.