1 Jurisdictional Issues with Mexico... Dialogue Across the Border

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Jurisdictional Issues with Mexico...

Dialogue Across the Border

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Anaheim, California., September, 18, 2007.



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Asistente Consular, Consulado de Mexico Calexico California

Guillermo Fernandez Villalobos

Introduction Guest Speakers

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First Family Law Judge of Mexicali, B.C. Mexico

Lic. Victor Manuel Fernandez Ruiz de Chavez

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Second Family Law Judge of Tijuana, B.C. Mexico

Lic. Gustavo Adolfo Villarespe

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Overview

• Brief History– How did this all start?

• Working Child Support Issues across Borders

• Child Support in Mexico

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Brief History

• 1993 – First Contact with DIF

• Develop Basic Collection of Mexico payments for California Welfare Recipients

• 2000 – Introduction to the Consulate of Mexico

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• 2000 – The Consulate of Mexico– Established dialog between the Imperial

County LCSA and the Consulate to develop procedures to pursue establishment of paternity and support.

– Enhanced Child Support Procedures for Payments in both directions of Mexico/California Border


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• What did it take to get here?

– LCSA needed to understand Child Support in Mexico

– Discussions between LCSA and Consulate of Mexico on what could and could not be done in each respective country.

– Testing cases in both Mexico and U.S. courts and streamlining the procedures required to make the process work.

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• 2002 – Discussions with California Office of the Attorney General and San Diego LCSA– Develop Procedures for Enforcement of

International Child Support Cases– Establish a Legal Framework Supporting

International Enforcement

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• 2003 – Cross Border Cases Committee – Family Law Judges from Mexico

• Tijuana• Ensenada• Rosarito

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• 2005 – Collaborative Initiative between the Imperial County Courts and the Judicial Branch in Mexicali BC

• Mini-Convention held at Imperial County Child Support Office in December 2005.

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• The December 7, 2005 mini-convention– Consul of Mexico/Superior Court Exec Officer– Open communications on policies and

procedures for child support in both California and Mexico

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Dialogue Across the Border• Results of the Imperial Mini-Convention

– Understanding from both sides of the border of Child Support issues

– International Judicial Assistance – Rules and treaties which govern International Situations

• Inter-American Convention on Letters Rogatory• Hague Convention• Identification of Protocols for Child Support • URESA and UIFSA• Local Procedures using Established Policy

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Dialogue Across the Border• What’s Next for Mexico-U.S.

– Possibilities and Proposals for Child Support• Detailed Jurisdiction and Enforcement issues• Detailed Notification and/or Summons • Discussion of Mexico/California Laws

– Presumption– Defaults– Timelines to set aside

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• Lifting Barriers to Child Support Services– Language– Culture– Literacy– Immigration Concerns

• Real or Imagined Barriers – and how to address them.

Areas of Concern

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History

Summary

• Started as a Child Abduction Case• Trial and Testing of Procedures Using

Existing Law’s, Regulations, and Treaties• Still Moving On



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Guillermo Fernandez Villalobos

Asistente Consular, Consulado de Mexico Calexico California




20Anaheim, California., September, 18, 2007.

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FAMILY LAW ISSUES MOST COMMONLY PRESENTED IN BORDER STATES:

Dissolution of Marriage.- Both parties file the same legal action in different Courts (Mexican Family Law Courts, and the other one in the California Superior Court.)

- Law Conflict.- Which Country Law system is going to solve this case

• Problem: - Jurisdiction.- Which Court has jurisdiction over this

petitions.

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SOLUTIONS ACCORDING TO INTERNATIONAL PRIVATE LAW LEGAL PRINCIPLES

Locus regit actum.- The law applied to a contract, is the law where it was celebrated.

The law in which Real Property is located , is the law that will solve the case.

Mobillia sequentur personam.- Personal Property follows is Owner.-

Lex Fori.The Law applied to a judicial procedure, it must be the law of the Court in which the procedure is followed.-

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SOLUTIONS ACCORDING TO STATE LAWC.C.P. and C.F.C.

C.C.P. Section: 410.50. (a) Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10). A general appearance by a party is equivalent to personal service of summons on such party. (b) Jurisdiction of the court over the parties and the subject matter of an action continues throughout subsequent proceedings in the action. (Lex Fori)

C.F.C. 4905. 2) The individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction.

BAJA C.C.P.Section 154.- Se entienden sometidos tácitamente:I.- El demandante, por el hecho de ocurrir al Juez entablando su demanda;II.- El demandado, por contestar la demanda o por reconvenir al actor;

Section 153.- Hay sumisión expresa cuando los interesados renuncian clara y terminantemente el fuero que la ley les concede y designan con toda precisión el Juez a quien se someten. (Lex Fori)

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Child Support: We have 2 situations

1).-Non Custodial Parents that are Permanent Residents in the U.S. and due to family controversies abandoned their families in México to avoid being sued for child support.

2).- Non Custodial Parents, returned to the U.S. in order to avoid the payment of Child Support order issued by the Mexican Courts.

SOLUTIONS UNDER UIFSA AND THE INTERAMERICAN CONVENTION ON LETTERS ROGATORY

• If the Custodial Parent crosses to the U.S. he personally can request the assistance of the D.C.S.S. or the Court through the Self Help Center.

• If the CP does or doesn’t cross to the U.S. and has a Child Support Order issued by the Mexican Family Courts, the Mexican Judge can issued a Letter Rogatory to the Consulate of Mexico, which will be attached to the transmittal sheet for services requesting the support of D.C.S.S. in order to garnish the wages of the NCP.

• Child Support: registration of the foreign order in the California Courts. It takes (1 to 3) months for the CP to receive his Child Support payment. C. C.R. Title 22, Division 13.

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PRACTICAL EXAMPLE: Superior Court of California County of Imperial

Summary:

On November, 2006, Mom sued Dad who is a permanent resident of the U.S. and works in the Imperial County, for a Child Support pension in the Second Family Law Court of Mexicali B.C. file number 15/2006.

Dad with the intention to avoid child support payment, returns and establishes his place of residence in Imperial County, CA.

Mom contacts the Mexican Consulate in Calexico requesting their support in order to receive legal advice and enforce the child support judgment issued by the Mexican Court.

The Consulate advice mom to fill out the UIFSA Transmittal Sheet # 1 form, and make a request to the Mexican Family Judge for the issuance of a letter rogatory addressed to D.C.S.S. in Imperial County - requesting their support in order to retain the amount of $205. 00 dollars of wages of Dad for Child Support.

On January 25, 2007, the Consulate sent to the D.C.S.S. in the Imperial County, the Letter Rogatory issued by the Second Family Judge in Mexico as well as the UIFSA Transmittal Sheet # 1. The D.C.S.S. filed the registration of an out of state order in the California Superior Court in the County of Imperial under case number EFS09276.

Mom starts receiving her Child Support Pension through the Consulate of Mexico in Calexico, CA.

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• Child Abduction.- In custody cases most of the parties don’t agree with the judgment issued by the judicial authority, and they proceed to abduct their children to the U.S. or Mexico, others do it in order to prove to the Court that they have the physical custody of their child and avoid the payment of child support.

• Problem:

• In most frequent cases, the father who is a permanent resident of the U.S. is the one who abducts the child.

• The mother doesn’t have the proper document to cross to the U.S. in order to request directly to Superior Court of California, the international restitution of the child under FC sections 3441-3457, so she needs to apply under the procedure established in the Hague Convention on the Civil Aspects of International Child Abduction.

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SOLUTIONS UNDER THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL ABDUCTION AND CALIFORNIA FAMILY CODE

1).- If the Custodial Parent, can’t cross to the U.S. she or he can apply for the restitution of the minor in the office of the Minister of Foreign Affairs of his country. (Sections 4, 6, 8, 9, 10 of the Convention)

2).- If the Custodial Parent has the proper immigration document to cross to the U.S. she or he can request the assistance of the District Attorney and request the international restitution of her child or registered a previous custody order in the Superior Court of California. (Section 29, of the Convention and Sections 3441-3457

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PRACTICAL EXAMPLE: Superior Court of California County of Imperial

Summary:

On June 2005, Dad presented a custody law suit against Mom in the Second Family Law Court in Mexicali B.C., requesting the physical and legal custody of their children, petition that was filed under case number 649/2005.

On October 2005, physical custody was granted to Mom and legal custody was granted to both parents.

Dad, not happy with the judgment, abducts their children to El Centro, CA., and files a custody petition against Mom in the Superior Court of California in the Imperial County, file number EFL02463 and physical custody is granted to Dad.

On June 23, 2006, Mom with the help of a local attorney request the international restitution of her children under section 29 of the Hague Convention and sections 3441-3457 C.F.C.

Case still pending for judgment.


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Victor M Fernandez Ruiz de Chavez

First Family Law Judge ofMexicali, B.C. Mexico





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Second Family Law Judge of Tijuana, B.C. Mexico

Lic. Gustavo Adolfo Villarespe





Jurisdictional Issues with Mexico...Dialogue Across the Border

Questions

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Anaheim, California., September, 18, 2007.



Documents

1 Jurisdictional Issues with Mexico... Dialogue Across the Border