Registration and Enforcement of Family Foreign Judgments in Mexico Pathways to Justice Conference June 8, San Francisco, CA.

Transcription

1 Registratin and Enfrcement f Family Freign Judgments in Mexic 2012 Pathways t Justice Cnference June 8, San Francisc, CA.

2 Intrductin Cmparative law Mexic is a civil law system U.S. is a cmmn law system Base n this differences many situatins where the same legal term has different meanings, r where different legal terms have same legal effect This can ften cause cnfusin t self represented litigants, lawyers, and judges. This presentatin will nt deal with theretical examinatin f differences between the cmmn law and the civil law, but will fcus n the similarities f bth systems.

3 Legal terms and cncepts UNITED STATES: MÉXICO: Child Supprt Spusal Supprt Supprt f an Adult Child Supprt f Parents Legal and Physical Custdy Cmmunity and Separate Prperty Parentage Pensión Alimenticia (alimny r family supprt) Patria Ptestad y Custdia Bienes Mancmunads y Separads Paternidad Nte: in Mexic alimny, refers t fd, clthing, medical attentin, health insurance, habitatin, etc., cmbine in ne cncept.

4 Cntinued UNITED STATES: Registratin f Out f State Supprt Order Registratin f Out f State Custdy Order Incme withhlding Letter Rgatry r Letter f Request MÉXICO: Hmlgación de Sentencia Extranjera Retención de sueld Carta Rgatria u Ofici Exhrtatri

5 Laws regulating the Recgnitin and Enfrcement f Freign Judgments Inter-American Cnventin n Extraterritrial Validity f Freign Judgments and Arbitral Awards. Inter-American Cnventin n Jurisdictin in the Internatinal Sphere fr the Extraterritrial Validity f Freign Judgments. The US is nt a signatry t either f these cnventins.

6 If the Cuntry issuing the rder is nt a signatry Cuntry Mexic may nt be bund t enfrce the Judgment (unless there is internatinal cmmitment). Méxic s prcedural laws will set the standards fr recgnitin. If yu wish t nly register an rder, first cnsider the lcal Cde f Civil Prcedure f the particular Mexican state where we are seeking registratin. (Baja Califrnia, Snra, Chihuahua, Jalisc, Michacán, etc). If yu seek enfrcement and executin, a letter rgatry has t cnfrm with the rules set frth in the Mexican Federal Cde f Civil Prcedures.

7 Internatinal Reciprcity in Registratin and Enfrcement f Freign Judgments The thery f reciprcity psits that the curts f cuntry A shuld recgnize and enfrce the judgments f cuntry B, if and nly if, cuntry B is prepared t ffer similar recgnitin and enfrcement t the judgments f cuntry A.

8 Internatinal Reciprcity between the US and Mexic UNITED STATES: US Cnstitutin, Article IV, (full, faith and credit clause). CA Family Cde (Jurisdictin & Enfrcement) Family Cde (Unifrm Recgnitin Divrce Act ) Family Cde (Unifrm Interstate Family Supprt Act UIFSA ) Family Cde (Unifrm Child Custdy Jurisdictin Enfrcement Act UCCJEA ) CA Cde f Civil Prcedure 1913 MÉXICO: Cnstitución Plítica de Méxic Artícul 121 (full faith and credit clause) Mexic s Internatinal Reciprcity Declaratin. Attachment A. Civil Cde f Federal Prcedures (Sectins ) Cde f Civil Prcedures fr the State f Baja Califrnia (Sectins ) Nte: T enfrce a freign judgment in Mexic the mving party has t use the CCFP, if the intentin is nly t register, then the yu use State Law. Please see attachments B and C.

9 Cnditins fr Registratin and Enfrcement f Freign Judgments under Mexic s Federal Cde f Civil Prcedure In rder fr a state curt in Mexic register and enfrce a Califrnia Judgment, all requirements fr letters rgatry must be satisfied. The curt rendering the judgment had prper jurisdictin t try the matter and t pass judgment n it. Service f prcess n defendant has been made in due legal frm. There must be n similar case in a Mexican curt as result f the same legal actin. The judgment must nt be cntrary t Mexican public plicy. The judgment must fulfill all the frmal requirements t be cnsidered authentic (Tw step prcess) - Certificatin by curt fficials (clerk) - Apstille frm the Secretary f State.

10 Prcedure fr Registratin (Hmlgacin) accrding t FCCP in Mexic The prcess fr hmlgación is cnsidered a summary prceeding. Petitin s fr registratin and enfrcement f judgment must be prepare n pleading paper. Once a pleading fr registratin and enfrcement is filed, the Respndent must be persnally served with a cpy f it. Respndent has 9 days t file a Respnse and ppse t the registratin and enfrcement f the judgment. The curt will set up a hearing date fr review any evidence. Once the evidence is review, the curt will issue a rder either granting the registratin and enfrcement f the rder.

11 Diagram f Registratin and Enfrcement f Freign Judgments in Mexic. Once the petitin is filed, the parties invlved are given a 9 day perid t defend themselves against the allegatins File a petitin in the Family law curt, fr the registratin and enfrcement f a freign judgment knwn as Incidente de Hmlgación de Sentencias Extranjeras An appeal prcess is als available t bth parties, fr which a 5 day perid is granted After the Curt has review evidence & any arguments, the Curt will issue a decisin rder granting r denying f the rder/judgment See attachment D.

12 Guidelines n drafting Letters Rgatry. Shuld be written in simple English Shuld be addressed "T the Apprpriate Judicial Authrity Include a brief synpsis f the case, including identificatin f the parties and the nature f the claim and relief sught t enable the freign curt t understand the issues invlved State the nature f the assistance requested Include a statement expressing a willingness t prvide similar assistance t judicial authrities f the receiving state

13 Recmmendatins... The names f natural persns, as ppsed t crprate persns, in the US and in Mexic are cmpsed differently. In Califrnia, f the Califrnia Health and Safety Cde des nt prscribe the frmat r the rder f the name f a child. Example: Father s Name Gabriel Fernandez Ruiz de Chavez Mther s Name Carmen Villalbs Quinter Child s Pssible Names: Guillerm Fernandez Guillerm F. Villalbs Guillerm Villalbs Guillerm V. Fernandez

14 Cntinued In Mexic, the Civil Cde f each Mexican state establishes the manner in which t cmpse the names f natural persns. First name fllwed by First Paternal Last Name and First Maternal Last Name Example: Father s Name Gabriel Fernandez Ruiz de Chavez Mther s Name Carmen Villalbs Quinter Child s Name Guillerm Fernandez Villalbs

15 Result &Suggestins As yu can see, this difference can create identificatin prblems in Mexic because the Mexican curt that receives the Letter Rgatry, might think that the persn trying t enfrce and register the judgment, is different frm the ne that appears in judgment entered by the Califrnia Curt. T avid this prblem, we suggest t always enter the parties full name n the Letter Rgatry as and AKA.

16 Wh can assist us n Registering and Enfrcing a Judgment in Mexic IF IT S A CHILD SUPPORT OR CUSTODY AND INTERNATIONAL RESTITUTION ORDER : DIF (Desarrll Integral para la Familia): this is the Scial Services Department f each state. Their Prsecutin Unit fr the Defense f the Minr and the Family, knwn as Prcuraduria para la Defensa del Menr y la Familia, will prcess the request. Their duty is t prvide judiciary assistance and scial stabilizatin, specially fr minrs the elderly and disable peple with lw ecnmical resurces. Under the Manual fr Cllectin f Child Supprt and Internatinal Restitutin f Minr Children f Mexic's Minister f Freign Affairs the Natinal and State ffices f DIF are in charge f prcessing these cases. Public Defenders ffice in Family Matters f each State. Private attrney. What d they need? (please see cntact list)

17 Cntinuance IF IT S A DIVORCE JUDGMENT: If it s nly fr Registratin (t btain a divrce certificate frm Mexic s Recrder s Office) we just have t send the LR t the family Judge were the parties gt married in Mexic. If it s fr enfrcement f assets and debts, we can request the assistance f the Public Defenders ffice in Family Matters f each State. Private attrney.