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Mexico: Supreme Court Declares Automatic Child Custody Provision Unconstitutional

(Dec. 18, 2019) On November 21, 2019, the First Chamber of the Supreme Court of Mexico declared unconstitutional a controversial provision of the Civil Code of Mexico City that gives mothers automatic preferential provisional custody of their children under 12 years of age in divorce proceedings. The Court determined that article 282(B)(II), third paragraph of the Code violates the principle of the best interests of the child because it displaces the judge’s role of evaluating the particular circumstances of each specific case to determine the person best able to meet the affective and care needs of a child.

The Court also held that the presumption in favor of the mother underlying the provision of the Code not only reaffirmed the stereotypical role of women as mothers but prevented eradicating the concept of traditional femininity.

The Court in its determination proceeded from the fact that the previous interpretation of the controversial article of the Code was not sustainable because the article was based on a distinction of the sex of the parent, and this differentiation falls into one of the suspect classifications set forth in the Mexican Constitution. Article 1 of the constitution prohibits any discrimination by reason of ethnic or national origin, gender, age, disabilities, social status, health conditions, religion, opinions, sexual preference, civil status, or any other factor that infringes human dignity and is intended to annul or diminish people’s rights and freedoms.