U.S./Mexico Cross-Border Issue: Child Abduction—The Need for Cooperation

29 N.M. L. Rev. 289 (Children's Law Issues (Summer 1999) 1999) Summer 1999 U.S./Mexico Cross-Border Issue: Child Abduction—The Need for Cooperation Antoinette Sedillo Lopez University of New Mexico - Main Campus Recommended Citation Antoinette S. Lopez, U.S./Mexico Cross-Border Issue: Child Abduction—The Need for Cooperation, 29 N.M. L. Rev. 289 (1999). Available at: https://digitalrepository.unm.edu/nmlr/vol29/iss2/3 This Article is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr INTERNATIONAL LAW-U.S./MEXICO CROSSBORDER CHILD ABDUCTION-THE NEED FOR COOPERATION ANTOINETTE SEDILLO L6PEZ I I. INTRODUCTION Mexico and the United States have always had substantial cultural, social and political ties.' The signing of the North American Free Trade Agreement2 increased the economic ties between Mexico and the United States. Many American and Mexican citizens marry, partially because of the shared cultural heritage between northern Mexico and the southwestern United States,4 and partially because of6 proximity.5 The breakup of these marriages can cause post-divorce conflict. American citizens and Mexican citizens may cross the border in both directions to 7 avoid such legal consequences of divorce as custody orders and liability for child * Henry Weihofen Professor of Law, University of New Mexico. I would like to express my appreciation to Monica Ontiveros and then Attorney General Tom Udall for inviting me to make a presentation on this topic at the Border States Attorneys General Conference. I also appreciate the research assistance of Ida Hernandez and Elaine Ramirez and the comments of my colleague Jenny Moore. 1. See generally ENRIQUE KRAUZE, MEXICO, BIOGRAPHY OF POWER: A HISTORY OF MODERN MEXICO, 1810-1996 (1997); LAURA RANDALL, CHANGING STRUCTURE OF MEXICO: POLIrICAL, SOCIAL, AND ECONOMIC PROSPECTS (1996); SIDNEY WEINTRAUB, A MARRIAGE OF CONVENIENCE, RELATIONS BETWEEN MEXICO AND THE UNITED STATES (1990); HOWARD F. CUNE, THE UNITED STATES AND MEXICO (1963); RODOLFO 0. DE LA GARZA & JESUS VELASCO, BRIDGING THE BORDER: TRANSFORMING MEXICO-U.S. RELATIONS (1998). 2. North American Free Trade Agreement, U.S.-Mex.-Can., Sept. 17, 1993, 32 LLM. 296 (1993). The treaty was approved by Congress on November 17, 1993, and according to article 2203, entered into force on January 1, 1994. 3. See Ellen G. Yost, NAFTA-Temporary Entry Provisions-ImmigrationDimensions,22 CAN.-U.S. LJ. 211 (1996). But c.f. Kevin R. Johnson, FreeTrade and Closed Borders: NAFTA and Mexican Immigration to the United States, 27 U.C. DAVIS L. REV. 937, 943-56 (1994) (noting that while NAFIA proponents hoped to break down trade barriers, there was a distinct and contradictory debate over the effect that illegal Mexican immigration would have on the U.S. economy). 4. See generally LATINOS INTHE UNITED STATES: HISTORY, LAW AND PERSPECTIVE, VOL. L HISTORICAL THEMES AND IDENTITY: MESTIZAJE AND LABELS (Antoinette Sedillo Ldpez ed., 1975). 5. Although statistics on the number of marriages between Mexican and American citizens are not officially recorded, the number of petitions for residency through marriage between U.S. citizens and non-citizens suggests an increasing marital rate. See U.S. Immigration & Naturalization Service, Office of Policy and Planning, Annual Report (January 1999), 8, tbl 1 (Immigrants Admitted By Major Category of Admissions: Fiscal years 1994-97 170, 263 spouses of U.S. citizens (21.3 percent, up from 17.1 percent in 1995). Mexico is also the country of birth of the largest number of immigrants. See id. at tbl. 2. The statistics suggest an increasing number of children with dual Mexican and U.S. citizenship. Cf. Paula Gutierrex, Mexico's DualNationality Amendments: They Do not Undermine U.S. Citizens Allegiance and Loyalty or U.S. PoliticalSovereignty, 19 LOY. LA. INT'L & COMP. ..J. 999 (1997); Jorge A. Vargas, DualNationalityforMexicans? A ComparativeLegal Analysis of the DualNationalityProposaland its EventualPoliticaland Socio-Economic Implications, 18 CHICANO-LATINO L REV. 1 (1996). 6. See, e.g., Yvonne Chiu, Mom Beats Odds, Gets 3 Kids Back After Abduction: FatherTook Them to Mexico, SACRAMENTO BEE, Feb. 11, 1999, at BI. 7. See Michael Perry, Child Kidnappingson the Rise, REUTERS N. AM. WIRE, July 29, 1993, available in LEXIS, New Library, Arcnews file; Karen Thomas, Mother Looksfor Children, Fiercely Holding on to Hope, PORTLAND OREGONIAN, Oct. 10, 1993, available in 1993 WL 11696837) (describing Susan Morrow's search for her children who were taken to Mexico by their Mexican-born father); Michael A. Lev, Children FoundAfter 4 Year Search, Woman's PersistenceLeads To Recovery of Sons Taken by Ex-Spouse, L.A. DAILY NEWS, Aug. 1, 1993, at U2 (describing Theresa Lewis' lengthy and expensive, but successful, search for her children who were taken by her ex-husband to Mexico). In 1992, 268 children were abducted from the United States to Hague signatory nations. See Michael Granberry, Prisonersof Trans-BorderCustody Wars, LA. TIMES, July 21, 1994, NEW MEXICO LAW REVIEW [Vol. 29 support.' Of course, a non-relative kidnapper can also try to evade the law by crossing the border. According to the State Department Office of Children's Issues, Mexico is the single most frequent destination state for child abductions from the United States and the United States is the single most frequent destination state for children abducted from Mexico.9 This article will look at the Hague Convention on the Civil Aspects of Child Abduction (Hague Convention)' ° as a legal mechanism" for resolving child abduction issues between citizens and residents of the United States and Mexico. 2 First, the article will describe the problems that the Hague Convention was designed to address and outline the relevant provisions of the Hague Convention. Second, the article will compare the law regarding child custody in the United States and the law of patria potestad3 in Mexico. The difference in legal context in the neighboring countries presents some problems and delays in enforcing the Convention. Finally, the article will suggest ways in which courts in the United States and Mexico can cooperate in enforcing the Convention to resolve child abduction issues more effectively. II. THE HAGUE CONVENTION ON CIVIL ASPECTS OF CHILD ABDUCTION Mexico and the United States 4 are both parties to the Hague Convention on the Civil Aspects of Child Abduction.' Prior to the entry in force of the Hague Convention between Mexico and the United States on October 1, 1991, parents at A3. An additional 247 children were taken to countries that had not signed the Hague Convention. See id. In 1993, 357 children were returned from Hague signatory nations to the United States. See id. 8. See Attorney Generals Urged To Eye Family Law Issues, ALBUQ. J., Apr. 18, 1998, at B3. 9. See interview with stat (...truncated)