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david ingram replies:
I am NOT, I repeat NOT qualified or experienced enough to answer this question with specifics. Your friend (or you in her stead) neds to consult a Me xican lawyer with experience in family law.
I CAN tell you that that woud be the situation in the Unbited states where a family there on a H1 or TN visa with the husband having the working visa and the wife and children there as YD or H4 dependents. In that case, if the wife leaves the family, officially she can not take the kids with her.
Of course, a lot depends upon your friend's husband's status in Mexico an dthe status she and the two girls entered Mexico. If they entered as a family unit and FM2 or FM3 visas have been issued for the wife and children, that is one situation. If there have been resident visas issued for the daughters and none for her, she is in big trouble.
Do NOT expect to find your answer about this on the internet.
And, if there is anything that your friend does NOT want, it is to be arrested and put in a Mexican jail.
She needs a good divorce lawyer in Canada and one in Mexico working with that person.
In my 44 years of dealing with divorced parents, etc., I have never encountered or bveen involved in a Canada Mexico case. I have seen several US Mexico ones but never a Canadian Mexican situation.
The following is the Hague Convention on Child Abduction and Custody.
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INTERNATIONAL CHILD ABDUCTION,
DONE
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The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in
matters relating to their custody, Desiring to protect children internationally
from the harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their habitual
residence, as well as to secure protection for rights of
access,
Have resolved to conclude a Convention to this
effect, and have agreed upon the following provisions.
CHAPTER I - SCOPE OF THE
CONVENTION
Article 1
The objects of the present Convention are –
<!--[if
!supportLists]-->a.
<!--[endif]-->to secure
the prompt return of children wrongfully removed to or retained in any
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->b.
<!--[endif]-->to ensure that
rights of custody and of access under the law of one
Article 2
Contracting States shall take all appropriate
measures to secure within their territories the implementation of the objects of
the Convention. For this purpose they shall use the most expeditious procedures
available.
Article 3
The removal or the retention of a child is to be
considered wrongful where-
<!--[if
!supportLists]-->a.
<!--[endif]-->it is in
breach of rights of custody attributed to a person, an institution or any other
body, either jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->b.
<!--[endif]-->at the time of
removal or retention those rights were actually exercised, either jointly or
alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph
a above, may arise in particular by operation of law or
by reason of a judicial or administrative decision, or by reason of an agreement
having legal effect under the law of that State.
Article 4
The Convention shall apply to any child who was
habitually resident in a
The Convention shall cease to apply when the child
attains the age of 16 years.
Article 5
For the purposes of this Convention –
<!--[if
!supportLists]-->a.
<!--[endif]-->'rights of
custody' shall include rights relating to the care of the person of the child
and, in particular, the right to determine the child's place of residence;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->b.
<!--[endif]-->'rights of access' shall include the right to take a child for
a limited period of time to a place other than the child's habitual residence.
CHAPTER II - CENTRAL
AUTHORITIES
Article 6
A
Article 7
Central Authorities shall co-operate with each
other and promote co-operation amongst the competent authorities in their
respective States to secure the prompt return of children and to achieve the
other objects of this Convention.
In particular, either directly or through any
intermediary, they shall take all appropriate measures –
<!--[if
!supportLists]-->a.
<!--[endif]-->to discover
the whereabouts of a child who has been wrongfully removed or retained;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->b.
<!--[endif]-->to prevent
further harm to the child or prejudice to interested parties by taking or
causing to be taken provisional measures;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->c.
<!--[endif]-->to secure
the voluntary return of the child or to bring about an amicable resolution of
the issues;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->d.
<!--[endif]-->to exchange,
where desirable, information relating to the social background of the child;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->e.
<!--[endif]-->to provide
information of a general character as to the law of their State in connection
with the application of the Convention;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->f.
<!--[endif]-->to initiate
or facilitate the institution of judicial or administrative proceedings with a
view to obtaining the return of the child and, in a proper case, to make
arrangements for organizing or securing the effective exercise of rights of
access;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->g.
<!--[endif]-->where the
circumstances so require, to provide or facilitate the provision of legal aid
and advice, including the participation of legal counsel and advisers;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->h.
<!--[endif]-->to provide
such administrative arrangements as may be necessary and appropriate to secure
the safe return of the child;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->i.
<!--[endif]-->to keep
other each other informed with respect to the operation of this Convention and,
as far as possible, to eliminate any obstacles to its application.
CHAPTER III - RETURN OF
CHILDREN
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
Article 8
Any person, institution or other body claiming that a child has been
removed or retained in breach of custody rights may apply either to the Central
Authority of the child's habitual residence or to the Central Authority of any
other Contracting State for assistance in securing the return of the child.
The application shall contain –
<!--[if
!supportLists]-->a.
<!--[endif]-->information
concerning the identity of the applicant, of the child and of the person alleged
to have removed or retained the child;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->b.
<!--[endif]-->where
available, the date of birth of the child;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->c.
<!--[endif]-->the grounds
on which the applicant's claim for return of the child is based;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->d.
<!--[endif]-->all available
information relating to the whereabouts of the child and the identity of the
person with whom the child is presumed to be.
The application may be accompanied or supplemented
by –
<!--[if
!supportLists]-->a.
<!--[endif]-->an
authenticated copy of any relevant decision or agreement;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->b.
<!--[endif]-->a
certificate or an affidavit emanating from a Central Authority, or other
competent authority of the State of the child's habitual residence, or from a
qualified person, concerning the relevant law of that State;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->c.
<!--[endif]-->any other relevant
document.
Article 9
If the Central Authority which receives an
application referred to in Article 8 has reason to believe that the child is in
another Contracting State, it shall directly and without delay transmit the
application to the Central Authority of that Contracting State and inform the
requesting Central Authority, or the applicant, as the case may be.
Article 10
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
The Central Authority of the State where the child
is shall take or cause to be taken all appropriate measures in order to obtain
the voluntary return of the child.
Article 11
The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings for the return of
children.
If the judicial or administrative authority
concerned has not reached a decision within six weeks from the date of
commencement of the proceedings, the applicant or the Central Authority of the
requested State, on its own initiative or if asked by the Central Authority of
the requesting State, shall have the right to request the Central Authority of
the requested State, that Authority shall transmit the reply to the Central
Authority of the requesting State, or to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the commencement of the
proceedings before the judicial or administrative authority of the Contracting
State where the child is, a period of less than one year has elapsed from the
date of the wrongful removal or retention, the authority concerned shall order
the return of the child forthwith.
The judicial or administrative authority, even
where the proceedings have been commenced after the expiration of the period of
one year referred to in the preceding paragraph, shall also order the return of
the child, unless it is demonstrated that the child is now settled in its new
environment.
Where the judicial or administrative authority in
the requested State has reason to believe that the child has been taken to
another State, it may stay the proceedings or dismiss the application for the
return of the child.
Article 13
Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of the requested State is not
bound to order the return of the child if the person, institution or other body
which opposes its return establishes that –
<!--[if
!supportLists]-->a.
<!--[endif]-->the person,
institution or other body having the care of the person of the child was not
actually exercising the custody rights at the time of removal or retention, or
had consented to or subsequently acquiesced in the removal of retention; or
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->b.
<!--[endif]-->there is a grave
risk that his or her return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also
refuse to order the return of the child if it finds that the child objects to
being returned and has attained an age and degree of maturity at which it is
appropriate to take account of its views.
In considering the circumstances referred to in
this Article, the judicial and administrative authorities shall take into
account the information relating to the social background of the child provided
by the Central Authority or other competent authority of the child's habitual
residence.
Article 14
In ascertaining whether there has been a wrongful
removal of retention within the meaning of Article 3, the judicial or
administrative authorities of the requested State may take notice directly of
the law of, and of judicial or administrative decisions, formally recognized or
not in the State of the habitual residence of the child, without recourse to the
specific procedures for the proof of that law or for the recognition of foreign
decisions which would otherwise be applicable.
Article 15
The judicial or administrative authorities of a
Contracting State may, prior to the making of an order for the return of the
child, request that the applicant obtain from the authorities of the State of
the habitual residence of the child a decision or other determination that the
removal or retention was wrongful within the meaning of Article 3 of the
Convention, where such a decision or determination may be obtained in that
State. The Central Authorities of the Contracting States shall so far as
practicable assist applicants to obtain such a decision or determination.
Article 16
After receiving notice of a wrongful removal or
retention of a child in the sense of Article 3, the judicial or administrative
authorities of the Contracting State to which the child has been removed or in
which it has been retained shall not decide on the merits of rights of custody
until it has been determined that the child is not to be returned under this
Convention or unless an application under the Convention is not lodged within a
reasonable time following receipt of the notice.
Article 17
The sole fact that a decision relating to custody
has been given in or is entitled to recognition in the requested State shall not
be a ground for refusing to return a child under this Convention, but the
judicial or administrative authorities of the requested State may take account
of the reasons for that decision in applying this Convention.
Article 18
The provisions of this Chapter do not limit the
power of a judicial or administrative authority to order the return of the child
at any time.
Article 19
A decision under this Convention concerning the
return of the child shall not be taken to be determination on the merits of any
custody issue.
Article 20
The return of the child under the provision of
Article 12 may be refused if this would not be permitted by the fundamental
principles of the requested State relating to the protection of human rights and
fundamental freedoms.
CHAPTER VI - RIGHTS OF ACCESS
Article 21
An application to make arrangements for organizing
or securing the effective exercise of rights of access may be presented to the
Central Authorities of the Contracting States in the same way as an application
for the return of a child.
The Central Authorities are bound by the
obligations of co-operation which are set forth in Article 7 to promote the
peaceful enjoyment of access rights and the fulfillment of any conditions to
which the exercise of such rights may be subject. The central Authorities shall
take steps to remove, as far as possible, all obstacles to the exercise of such
rights. The Central Authorities, either directly or through intermediaries, may
initiate or assist in the institution of proceedings with a view to organizing
or protecting these rights and securing respect for the conditions to which the
exercise of these rights may be subject.
Article 22
No security, bond or deposit, however described,
shall be required to guarantee the payment of costs and expenses in the judicial
or administrative proceedings falling within the scope of this Convention.
Article 23
No legalization or similar formality may be
required in the context of this Convention.
Article 24
Any application, communication or other document
sent to the Central Authority of the requested State shall be in the original
language, and shall be accompanied by a translation into the official language
or one of the official languages of the requested State or, where that is not
feasible, a translation into French or English.
However, a
Article 25
Nationals of the Contracting States and persons
who are habitually resident within those States shall be entitled in matters
concerned with the application of this Convention to legal aid and advice in any
other Contracting State on the same conditions as if they themselves were
nationals of and habitually resident in that State.
Article 26
Each Central Authority shall bear its own costs in
applying this Convention.
Central Authorities and other public services of
Contracting States shall not impose any charges in relation to applications
submitted under this Convention. In particular, they may not require any payment
from the applicant towards the costs and expenses of the proceedings or, where
applicable, those arising from the participation of legal counsel or advisers.
However, they may require the payment of the expenses incurred or to be incurred
in implementing the return of the child.
However, a Contracting State may, by making a
reservation in accordance with Article 42, declare that it shall not be bound to
assume any costs referred to in the preceding paragraph resulting from the
participation of legal counsel or advisers or from court proceedings, except
insofar as those costs may be covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an
order concerning rights of access under this Convention, the judicial or
administrative authorities may, where appropriate, direct the person who removed
or retained the child, or who prevented the exercise of rights of access, to pay
necessary expenses incurred by or on behalf of the applicant, including travel
expenses, any costs incurred or payments made for locating the child, the costs
of legal representation of the applicant, and those of returning the child.
Article 27
When it is manifest that the requirements of this
Convention are not fulfilled or that the application is otherwise not well
founded, a Central Authority is not bound to accept the application. In that
case, the Central Authority shall forthwith inform the applicant or the Central
Authority through which the application was submitted, as the case may be, of
its reasons.
Article 28
A Central Authority may require that the
application be accompanied by a written authorization empowering it to act on
behalf of the applicant, or to designate a
representative so to act.
Article 29
This Convention shall not preclude any person,
institution or body who claims that there has been a breach of custody or access
rights within the meaning of Article 3 or 21 from applying directly to the
judicial or administrative authorities of a
Article 30
Any application submitted to the Central
Authorities or directly to the judicial or administrative authorities of a
Article 31
In relation to a State which in matters of custody
of children has two or more systems of law applicable in different territorial
units –
<!--[if
!supportLists]-->a.
<!--[endif]-->any
reference to habitual residence in that State shall be construed as referring to
habitual residence in a territorial unit of that State;
<!--[if
!supportLineBreakNewLine]-->
<!--[endif]-->
<!--[if
!supportLists]-->b.
<!--[endif]-->any reference to
the law of the State of habitual residence shall be construed as referring to
the law of the territorial unit in that State where the child habitually
resides.
Article 32
In relation to a State which in matters of custody
of children has two or more systems of law applicable to different categories of
persons, any reference to the law of that State shall be construed as referring
to the legal system specified by the law of that State.
Article 33
A State within which different territorial units
have their own rules of law in respect of custody of children shall not be bound
to apply this Convention where a State with a unified system of law would not be
bound to do so.
Article 34
This Convention shall take priority in matters
within its scope over the Convention of
Article 35
This Convention shall apply as between Contracting
States only to wrongful removals or retentions occurring after its entry into
force in those States.
Where a declaration has been made under Article 39
or 40, the reference in the preceding paragraph to a
Article 36
Nothing in this Convention shall prevent two or
more
CHAPTER VI - FINAL CLAUSES
Article 37
The Convention shall be open for signature by the
States which were Members of the Hague Conference on Private International Law
at the time of its Fourteenth Session.
It shall be ratified, accepted or approved and the
instruments of ratification, acceptance or approval shall be deposited with the
Ministry of Foreign Affairs of the Kingdom of the
Article 38
Any other State may accede to the Convention. The
instrument of accession shall be deposited with the Ministry of Foreign Affairs
of the Kingdom of the
The Convention shall enter into force for a State
acceding to it on the first day of the third calendar month after the deposit of
its instrument of accession.
The accession will have effect only as regards the
relations between the acceding State and such
The Convention will enter into force as between
the acceding State and the State that has declared its acceptance of the
accession on the first day of the third calendar month after the deposit of the
declaration of acceptance.
Article 39
Any State may, at the time of signature,
ratification, acceptance, approval or accession, declare that the Convention
shall extend to all the territories for the international relations of which it
is responsible, or to one or more of them. Such a declaration shall take effect
at the time the Convention enters into force for that State.
Such declaration, as well as any subsequent
extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom
of the
Article 40
If a Contracting State has two or more territorial
units in which different systems of law are applicable in relation to matters
dealt with in this Convention, it may at the time of signature, ratification,
acceptance, approval or accession declare that this Convention shall extend to
all its territorial units or only to one or more of them and may modify this
declaration by submitting another declaration at any time.
Any such declaration shall be notified to the
Ministry of Foreign Affairs of the Kingdom of the
Article 41
Where a Contracting State has a system of
government under which executive, judicial and legislative powers are
distributed between central and other authorities within that State, its
signature or ratification, acceptance or approval of, or accession to this
Convention, or its making of any declaration in terms of Article 40 shall carry
no implication as to the internal distribution of powers within that State.
Article 42
Any State may, not later than the time of
ratification, acceptance, approval or accession, or at the time of making a
declaration in terms of Article 39 or 40, make one or both of the reservations
provided for in Article 24 and Article 26, third paragraph. No other
reservations shall be permitted. Any State may at any time withdraw a
reservation it has made. The withdrawal shall be notified to the Ministry of
Foreign Affairs of the Kingdom of the
Article 43
The Convention shall enter into force on the first
day of the third calendar month after the deposit of the third instrument of
ratification, acceptance, approval or accession referred to in Articles 37 and
38.
Thereafter the Convention shall enter into force –
1. for each State ratifying, accepting, approving
or acceding to it subsequently, on the first day of the third calendar month
after the deposit of its instrument of ratification, acceptance, approval or
accession;
2. for any territory or
territorial unit to which the Convention has been extended in conformity with
Article 39 or 40, on the first day of the third calendar month after the
notification referred to in that Article.
Article 44
The Convention shall remain in force for five
years from the date of its entry into force in accordance with the first
paragraph of Article 43 even for States which subsequently have ratified,
accepted, approved it or acceded to it.
If there has been no denunciation, it shall be
renewed tacitly every five years.
Any denunciation shall be notified to the Ministry
of Foreign Affairs of the Kingdom of the
The denunciation shall have effect only as regards
the State which has notified it. The Convention shall remain in force for the
other Contracting States.
Article 45
The Ministry of Foreign Affairs of the Kingdom of
the
1. the signatures and ratifications, acceptances
and approvals referred to in Article 37;
2. the accession referred to in Article 38;
3. the date on which the Convention enters into
force in accordance with Article 43;
4. the extensions referred to in Article 39;
5. the declarations referred to in Articles 38 and
40;
6. the reservations referred to in Article 24 and
Article 26, third paragraph, and the withdrawals referred to in Article 42;
7. the denunciation
referred to in Article 44. In witness whereof the undersigned, being duly
authorized thereto, have signed this Convention.
Done at The Hague, on the 25th day of October,
1980, in the English and French languages, both texts being equally authentic,
in a single copy which shall be deposited in the archives of the Government of
the Kingdom of the Netherlands, and of which a certified copy shall be sent,
through diplomatic channels, to each of the States Members of the Hague
Conference on Private International Law at the date of its Fourteenth Session.
International Adoption
& Child Abduction
The following countries (including Mexico) are signatories to the Treaty/Convention
The Convention applies in the following States or territories as a result of ratification, acceptance, or approval: Argentina, Australia (only for the Australian States and mainland Territories), Austria, Belgium, Bosnia and Herzegovina, Canada, China - Hong Kong Special Administrative Region Only, China - Macau Special Administrative Region Only, Croatia, Czech Republic, Denmark (except the Faroe Islands and Greenland), Finland, Former Yugoslav Republic of Macedonia, France (for the whole of the territory of the French Republic), Germany, Greece, Ireland, Israel, Italy, Luxembourg, Netherlands (for the Kingdom in Europe), Norway, Portugal, Serbia and Montenegro, Slovakia, Spain, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland, Isle of Man, Cayman Islands, Falkland Islands, Montserrat, Bermuda, United States of America, and Venezuela. The Convention also applies in the following States or territories as a result of accession: Bahamas, Belarus, Belize, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Cyprus, Ecuador, El Salvador, Estonia, Fiji, Georgia, Guatemala, Honduras, Hungary, Iceland, Latvia, Lithuania, Malta, Mauritius, Mexico, Republic of Moldova, Monaco, New Zealand, Nicaragua, Panama, Paraguay, Peru, Poland, Romania, Saint Kitts and Nevis, Slovenia, South Africa, Sri Lanka, Thailand, Trinidad and Tobago, Turkmenistan, Uruguay, Uzbekistan, and Zimbabwe. Hague Conference on Private International Law, Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, available at http://www.hcch.net/e/status/abdshte.html#ratifications (last visited Nov. 19, 2003)
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David Ingram's US / Canada Services
US / Canada / Mexico tax, Immigration and working Visa Specialists
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My Home office is at:
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Cell (604) 657-8451 -
(604) 980-0321 Fax (604) 980-0325
Calls welcomed from 10 AM to 9 PM 7 days a week Vancouver (LA) time - (please do not fax or phone outside of those hours as this is a home office) expert US Canada Canadian American Mexican Income Tax help.
