Mexican Law/Patria Potestad y Custodia from Baja California
In 2009 my wife filed a petition with the Juzgado De Primera Instancia De Lo Divil De Playas De Rosarito, for "La Perdida de la Patria Potestad y Custodia" against the biological father of her daughter, my step daughter. The child was born out of wedlock and they were never married. His name was put on the birth certificate and he signed the registration after the birth as is the norm for Mexico. My wife won her case and has the Poder Judicial Del Estado De Baja California to show that the biological father has in fact, lost his "Patria Potestad y Custodia". Everything that I have read and researched regarding Mexican law leads me to believe that he has lost his parental rights and right of custody as well, leaving my wife as the sole person in charge of the child.
In 2011, she and I got married in Mexico. We have a Mexican Marriage certificate. In 2014 we moved to the United States, they got their permanent resident cards, my step daughter is doing great in school, and my wife is beginning her career in the US.
Now I want to adopt my step daughter and make her my daughter and give her my name. We have filed the papers with the juvenile court and have gone through the Health and Human Services Agency Child Welfare Services (HHSACWS) for San Diego County.
Both the juvenile court and the HHSACWS have told us that the decision my wife has from the Baja California court is for custody only. We tried to explain to them that the loss of Patria Potestad means that the father has lost his parental rights. In fact my wife met with two Mexican lawyers in Baja this past week to ask what else had to be done. They read the decision of the court and informed her that there is nothing more that needed to be done. That she had all parental rights for the child and the biological father now has none. I don't think the US courts, nor the HHSACWS, know how Mexican law work. They don't understand what Patria Potestad is. They don't understand that in Mexico and most other Latin American countries that Patria Potestad and Custody are two different things. It's the term Patria Potestad that I believe has them baffled, and not knowing what to do.
The juvenile court and the HHSACWS want us to petition the courts here in the US to have the biological father's rights terminated. Seems to me to be redundant. If we do that, we are asking the court to terminate rights that the biological father no longer has. Further, since the biological father never lived in California, the state has no jurisdiction over him to order him to appear, and he can't cross the border to appear anyway. And, he has not been involved with the child, now 12, since she was 17 months old. That was one of the determining factors for the Mexican judge, abandonment.
What do we do to get the US courts to honor the ruling of the Baja California court? I've read quite extensively on this and as I understand it, as long as a ruling from another country is equal to a ruling process here, the US court normally accepts it. Further, I have read that all they have to do is contact the court in Mexico via email, written communication, or even a phone call to ask questions.
Seems to me the Juvenile court her in San Diego and the HHSACWS is just being lazy and putting their burden of work onto us, and there really isn't anything for us to do, or should have to do. What do you think about this.
You could probably force the hand of HHSACWS in state or federal court. Or as you mentioned, you could just get a local California judge to terminate the father's rights. Exactly how to do one or the other is an issue for a California attorney.
In either case, you probably will want a legal brief written by a Mexican attorney that explains the concept "la patria potestad". If you need such a brief, I can do that for you. My direct email is:
Hope this helps.
John Lee Ward