The Supreme Court of Mexico has struck down as unconstitutional a provision in the capital’s law that has automatically given to mothers child custody of children under the age of 12 (KVOA, 11/21/19). That is, up to now, every child under the age of 12 in the country’s federal district, risked losing its precious relationship with its father when the adults split up. That was the district’s version of the Tender Years Doctrine that’s been abandoned by most countries in the Western world, Israel being one notable exception.
Mexico City, that makes up most of the federal district, has a population of almost 22 million people, so the change affects a large proportion of the country.
The Supreme Court found Thursday that the rule governing custody of kids under 12 years old is unconstitutional for making a distinction on gender.
The ruling is based on the principle of equality and the higher interest of minors. It says the unconstitutional language violates the latter by taking away judges’ discretion to consider the individual circumstances of each case to determine which parent is best equipped to care for a child’s needs.
Therefore, children’s best interests were deemed by the court to have been compromised by the previous law because, after all, in many instances, Mom’s not the better parent. But up to now, judges had no discretion to give custody to Dad.
Plus of course, the automatic award of child custody based solely on the sex of the parent presented obvious problems for the constitutional concept of gender equality.
So the law is now a dead letter and few will mourn its passing.
Should any of Mexico’s various states rely on the Tender Years Doctrine in child custody matters, they too would appear to violate the federal constitution.
Needless to say however, what exactly will change, apart from the wording of the statute, remains very much to be seen. Fathers may now get custody and shared parenting of kids under 12 is now a possibility. That’s all jolly good. But, as we so often see, the plain import of a law or, in this case, the plain import of a Supreme Court ruling may turn out to be very different from what judges actually do. Judges in Mexico, D.F. are still free to order sole custody to mothers in 100% of cases, just as they were required to do previously. Will there be a dramatic change in the “facts on the ground” due to the high court’s ruling? Or will it be business as usual under a different name?
Whatever the case, the Court’s ruling advances the cause of children’s well-being and fathers’ equality in child custody matters. Yes, it does so mostly because the now-defunct law was so retrograde, but still, a win’s a win, whatever comes of it.
In Mexico, as elsewhere, the struggle continues.