Child Support Directors Association

September 19-22, 2016

2016 Legal College

Child Support Cases with

Mexico:

Reciprocal Opportunities

for Success

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Liza Barraza, Asst. Director,

Imperial County Dept. of Child Support Services

Chief Justice Jorge Armando Vasquez,

Baja CA Supreme Court

Guillermo Fernandez Villalobos,

Special Programs Coordinator,

Imperial County Dept. of Child Support Services

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Liza Barraza, Assistant Director

Imperial County Dept. of

Child Support Services

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Located in a predominately agricultural area in southeast California

Borders Arizona (east) and Baja California (south)

Shares the largest United States port of entry with Mexico

Imperial County

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Immigration issues

International Judicial Assistance issues (service of process and obtaining evidence abroad)

Need for clarification on foreign laws

Conflicts of law and jurisdiction

Enforcement of child support orders on both sides of the border

Common Issues Between Imperial County and Baja California

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Identified child support agency and judicial branch in BajaCalifornia.

Approached counterparts

Exchanged issues and situations that arise across commonborder

Discussed legal solutions to:

Provide better assistance to the Courts in determining CEJ

Remove barriers (language, culture, legal illiteracy, etc.)

Established alternate procedure to expedite child supportapplications

Actions Taken

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Partners

Imperial County Department of Child SupportServices (ICDCSS)

Mexican Consulate in Calexico, CA.

DIF Baja California (Sistema Integral para la Familia)

Baja California Supreme Court of Justice (TribunalSuperior de Justicia de Baja California)

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Initial Collaboration 2009-Memoranda of Understanding between Superior Court of

California, County of Imperial and the Government of Baja

California executed

2011-Imperial County DCSS invited by Imperial County Superior

Court and the Judicial and Executive Branches of Baja California

to provide training in child support as part of their MOU

2012-Memorandum of Understanding between Imperial County

Department of Child Support Services and Consulate of Mexico in

Calexico, California executed

2014-Memorandum of Understanding between Imperial County

Department of Child Support Services and State DIF of Baja

California, executed

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Goals of MOUs Improve processing of international child support applications.

Assist shared customers with processing child supportapplications

Increase outreach to families in need of child support services

Use of Letters Rogatory

Improve effectiveness in establishing, modifying, and enforcingchild support obligations

Establish cross training of staff on both sides of the borderregarding administrative/court proceedings

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Outcomes Immigration waivers

International Judicial Assistance by use of Letters Rogatory

Cross-training for staff members of both agencies on:

respective laws and procedures

required forms and attachments (apostilles, translations, etc.)

Provide clarification for courts as to who has continuing exclusive jurisdiction (“CEJ”)

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Outcomes (continued)

MOUs streamline enforcement of child support on both sides of the border by:

Both agencies know what requirements are Reduces delays

Transmittal of applications to the Baja Central Authority rather than the Federal Central Authority to shorten processing times

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Streamlined process • APPLICANT Requests

the establishment of child

support order at LCSA.

LCSA transmits to DIF.

DIF FIELD OFFICE (BAJA CA STATE CENTRAL AUTHORITY )

1. Receives/reviews application and attachments

2. Prepares S&C based on information under UIFSA applications and files with the Mexican Court.

BAJA CA FAMILY COURT

1. Clerk files S&C regarding parental obligations.

2. Court orders NCP to be served through the

Court’s process server and a temporary child

support order is issued without a court hearing.

(similar to expediting child support orders under

FC 3620 -3626)

Pre-MOU: send to Federal Central Authority in Mexico

City first

SERVICE OF SUMMONS?

YES NO

BAJA CA FAMILY COURT

1. NCP has 5 business days to file

answer and evidentiary hearing &

judgment is scheduled within 1

month.

2. Establishes final child support order

that should be paid.

3. CT issues IWO & serves on

employer

BAJA CA FAMILY COURT’S AUXILIARY CASHIER DEPARTMENT

1. Receives payments from employer and CP picks up payment (SDU Courts are working on the creation of a SDU as well as on electronic transfer to CP’s.

END OF PROCEDURE

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Legal Authority for ICDCSS MOUs with Consulate,

DIF and Baja California Supreme Court

CALIFORNIA BAJA CALIFORNIA

California Family Code (UIFSA §5700.101-5700.905)

California Code of Regulations §110000-119900

OCSE policy PIQ-99-01

Law of the Judicial Branch of Baja California (Ley Orgánica del Poder Judicial de Baja California)

Reciprocity (Declaratoria de ReciprocidadInternacional)

Law for the Protection and Rights of Children (Ley Federal para la Protección de Niños, Niñas y Adolescentes)

Manual for Collection of Child Support between Mexico and the US (Ministry of Foreign Affairs)

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Results of Streamlined Procedure

Total Open Cases Between Mexico and California - 506 (as of April 1, 2016) Responding: 482 Initiating: 24

2016

(January –

March)

2015

(January –

December)

2014

(January –

December)

2013

(January –

December)

Total Mexico Cases 20 131 129 142

Baja California Norte 10 50% 69 53% 48 38% 67 48%

Baja California Sur 0 5 4% 5 4% 0

Responding Cases Initiating Cases

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Results to date

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Chief Justice

Jorge Armando Vasquez,

Baja CA Supreme Court

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Building on Successes: Next steps New MOU with Supreme Court of Baja California, signed on May 19, 2016

Seeks to promote communication between the Imperial LCSA and Mexican

courts and training for staff on their internal processes and laws

Seeks to provide locate services for Imperial LCSA in the state of Baja CA

neededd for NCPs located/working in Baja CA

Creation of a State Disbursement Unit for the Baja CA courts

Letters Rogatory for service of process and obtaining evidence for child

support matters will be given priority

Proposed Mexican federal law (based on the Hague Convention) for

ratification by each Mexican state

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Communication between Courts

Promoting the direct communication between judicial officers,which allows to obtain accurate information directly from thesource

Provides an expedited solution to those conflicts that arise in childsupport cases, such as conflicts of law and jurisdiction

Exchange of information on foreign law, status of case or legalaction in both communities is faster and accurate

This type of communication provides better administration ofjustice across our borders by having direct contact with ourcounterparts

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Locate services in Baja CA Imperial Courts can request the assistance of

Mexican law enforcement agencies in order tolocate parents or absent parents in Baja CA

For child support, child abduction and juvenile cases

Imperial Courts can also request employmentinformation of parties (wages, benefits, etc.)

Mexican Family Courts have been instructed to givepriority to all locate requests made by ICDCSS orImperial County Courts

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Proposed Modifications to Mexico’s Federal Code of Civil Procedure

Intent is to propose to Mexico’s Congress the creation of aspecial chapter in the Federal Code of Civil Proceduremodeled after the Hague Convention Would regulate transmittal and define requirements for child support

applications

If adopted, Mexico would have a uniform law regardingestablishment, registration and enforcement of child supportsimilar to UIFSA

Project is under study and development

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Creation of a State Disbursement Unit for the Baja CA Family Courts

Currently all child support payments are received at the Baja CA Court’sAuxiliary Cashier’s Department

Obligee must personally appear to receive his/her child supportpayment

Proposal is for the Baja CA Supreme Court to create a StateDisbursement Unit and partner with financial institutions

Would facilitate the transmittal of child support payments to obligeeslocated in Imperial County

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Expedite the processing of LettersRogatory

Letters rogatory for service of process, obtainingevidence abroad and registration and enforcement,will be given priority

This will expedite the disposition of child supportcases

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Guillermo Fernandez Villalobos Special Programs Coordinator,

Imperial County Dept. of

Child Support Services

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International Judicial Assistance

Letters Rogatory

Legal authority for preparation of letters rogatory (International, Federal, State and Foreign Law)

Types of letters rogatory and their application in child support cases

Transmittal of letters rogatory

Connection between International and California law

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Definition

Letter Rogatory (Term used by Inter-American Convention onLetters Rogatory)

Letter of Request (Term used by the Hague Convention on theService of Judicial on the Service Abroad of Judicial andExtrajudicial Documents in Civil or Commercial Matters)https://travel.state.gov/content/travel/en/legal-considerations/judicial/obtaining-evidence/preparation-letters-rogatory.html

Is there a difference?

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International Treaties on InternationalJudicial Assistance

Hague Conference on

Private International Law

Organization of American States

(OAS)

• Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters

• Inter-American Convention on

Letters Rogatory and its Protocol.

• http://www.oas.org/juridico/english/si

gs/B-36.html

• Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters

• Convention abolishing the Requirement of Legalization for Foreign Public Documents (Apostille)

• Inter-American Convention on the Taking of Evidence Abroad.http://www.oas.org/juridico/english/sigs/b-37.html

• (US not a party)

• https://www.hcch.net/en/instruments

/conventions/status-table/?cid=17

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Types of Letters Rogatory

Service of process of summons, citations and notices.

Obtaining Evidence Abroad (Depositions, Discovery, etc.)

Registration and Enforcement of Judgments

No treaties betweenMexico and the US

Based on International Reciprocity or Commitment

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US Legal Authority for Preparation of Letters Rogatory

United States Code, Title 28, sections 1696, 1781 (b)(2), 1782, 1783 and1651

Federal Rules of Civil Procedure, Rule 28 (b)

California Code of Civil Procedure, sections 413.10 (c) and 2027.010 (3) (e)

Interstate and International Depositions and Discovery Act (CCP 2029.100-2029.900

In re Vanessa Q. 187 Cal.App.4th 128, 114 Cal.Rptr.3d 294, 2010

California Rules of Court, 5.68 (a) (5) (A) (B)

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Preparation of Letters Rogatory Preparation of ex parte application for issuance of letter rogatory and

actual letter rogatory

(See Appendix A, for samples for Services of Process, Obtaining Evidence Abroad and Registration and Enforcement of Judgment)

After letter rogatory (LR) is signed by judicial officer and Court Clerk, must prepare a translation from English to Spanish of LR and all attachments

For LR for Service of Process Abroad, a certified copy of summons and complaint must be attached.

For LR for Registration and Enforcement, a certify copy of judgment must be attached.

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Transmittal of LRsService of Process

Hague Convention Sections 3, 9 and 10

Inter-American ConventionSection 4

a) Central Authority US Department of State (P.F.I) Mexico Ministry of Foreign Affairs (SRE)

b) Judicial Channels From Court to Court

c) Diplomatic Channels Through Embassies and Consulates

Hague Convention Inter-American Convention

o Mexico has declared that requests should only be transmitted through Central Authority channels. http://proteo2.sre.gob.mx/tratados/muestratratado_nva.sre?id_tratado=249&depositario=0

o Mexico accepts any type of transmittalchannel.

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Transmittal of LRs (continued)Obtaining Evidence Abroad

Hague Convention Sections 2 and 27

a) Central Authority- US Department of State (P.F.I)- Mexico Ministry of Foreign Affairs (SRE)

b) Judicial Channels - From Court to Court

c) Diplomatic Channels- Through Embassies and Consulates (consular officers)

Hague Convention on Obtaining Evidence Abroad

o Mexico has declared that letters of requests or rogatory can be transmitted through judicial or consular channels. http://proteo2.sre.gob.mx/tratados/muestratratado_nva.sre?id_tratado=284&depositario=0

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Transmittal of LRs (continued)Registration and Enforcement of

Judgments

Based on International Reciprocity or Commitment

UIFSA5700.101-5700.905

MEXICO’S FEDERAL CODE OF CIVIL PROCEDURE

- 5700.303 (b)- 5700.305 (a) (b)- 5700.307. (c) (1) (2)- 5700.602. (a)

Mexico’s Declaration of International Reciprocity

Section 569Section 571Section 572

Case law NO. 176451 (MX SCJN)Case Law NO. 204141 (MX SCJN)

* NOTE: Please see “Appendix” B

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Child Support Cross-Border ScenariosSCENARIO 1

• CP and child located in México (no-immigration visa). NCP works and residesin CA, paternity is at issue and NCP deniespaternity.

• How does ICDCSS obtain DNA samples?• Applicable law

Hague Convention on the Gatheringof Evidence Abroad

California Family Code Section- 5700.201. 5700.305. (1)- 5700.307. 5700.311.- 5700.316. (physical presence)- 5700.317 and 318 (communication)- 5700.402.

California Code of Civil Procedure2027.010

• MOU with MX Consulate in Calexico, CAapplies

• ICDCSS staff makes DNA sampleappointment and forwards it to MXConsulate in Calexico with DNA packet

• MX Consulate staff provide notice to CP tobring child to the Local office of theMinistry of Foreign Affairs in Mexicali, B.C.Mexico.

• Date of Appointment: MX Consulate staffcrosses the border to Mexicali, obtainsDNA sample from child and forwards DNApacket to ICDCSS

• ICDCSS forwards packet to laboratory.

Facts Solution

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Child Support Cross-Border Scenarios (cont’d)SCENARIO 2

• CP and child located in México (no-immigration visa), NCP works in CA butresides in México. NCP is served with S&Cin CA. NCP files for voluntaryconsignments of support in Mexico. NCPcomes back to CA and argues that there isalready a CS order and he is makingpayments.

• Applicable law: Hague Convention on the Gathering

of Evidence Abroad California Family Code sections

- 5700.307.- 5700.317 and 318 (communication)

California Code of Civil Procedure2027.010

• Letters Rogatory to obtain evidenceabroad come into play.

• Purpose is to verify if there is a CS order inMX and assist the Court in determiningCEJ and controlling order.

• ICDCSS prepares Ex parte application forissuance of LR and files with CA Court.

• LR is translated from English to Spanish byICDCSS staff and is directly transmittedand filed with the Mexican Court.

• Response by MX Court usually providedwithin 2-3 weeks and transmitted toICDCSS directly. ICDCSS files it with theCourt.

Facts Solution

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Child Support Cross-Border Scenarios (cont’d)SCENARIO 3

• CP requests direct services to LCSA. NCP’sname and signature appears on DEP birthcertificate. NCP is served in CA and goes toBaja California and files for custody,visitation and establishment of childsupport, and challenges issues ofjurisdiction in CA.

• Applicable law: Hague Convention on the Gathering

of Evidence Abroad California Family Code Section

- 5700.301, 5700.307.- 5700.204 (b) (1) (2) (3)- 5700.317 and 318 (communication)

California Code of Civil Procedure2027.010

• Letters Rogatory to obtain evidenceabroad come in to play.

• Purpose is to verify if NCP’s signature onDEP birth certificate is anacknowledgment of parentage (POP).

• Obtain from MX Court informationregarding procedure of custody, visitationand child support in Baja, specifically toverify if NCP did request the establishmentof CS or is simply making voluntarypayments.

• Procedure for preparation of LR andtransmittal is the same as the oneindicated in Scenario 2.

Facts Solution

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Child Support Cross-Border Scenarios (cont’d)SCENARIO 4

• CP and child reside in Imperial County andare recipients of public assistance. NCPresides in Mexico, ICDCSS has a goodlocate for NCP in Baja CA. Need to obtainwage information and serve him withS&C, procedure is followed and ICDCSSobtains a judgment.

• Applicable law: Inter-American Convention on LR for

Service of Process Abroad. Hague Convention on the Gathering

of Evidence Abroad. California Code of Civil Procedure

- 413.10 California Family Code

- 5700.317 and 318 (communication)• Other instruments:

• MOU with DIF• MOU with Judicial Branch of Baja

• Letters Rogatory for service of processabroad come in to play.

• Purpose is to properly serve NCP inMexico and obtain wage information ofNCP .

• After NCP is served and wage informationis obtained, proceed with motion forjudgment.

• Once judgment is entered, proceed withLR for registration and enforcement and itis transmitted to DIF, who will thereaftercommence legal enforcement proceedingsin Mexican family courts.

Facts Solution

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Contact information:

Liza Barrazalizabarraza@co.imperial.ca.us

Chief Justice Jorge Armando Vasquezpresidencia@pjbc.gob.mx

Guillermo Fernandez Villalobos, guillermofernandez@co.imperial.ca.us