Susane, I recommend you hire a lawyer to advise you about this. I can’t give legal advice on this blog. If you’d like to speak with me about this, let me know via the contact page.

and mexico even though a signer to the hague convention, can do as it pleases?

Hi, Susan,

I am really glad you find Letters Blogatory useful! Here’s my take on your questions. This is just general information, of course–for real legal advice, speak with a lawyer!

1. The Convention does not apply when the defendant’s whereabouts are unknown, though some courts impose a requirement of diligence on the plaintiff to try to locate the defendant. When the Convention doesn’t apply, the US court can apply its own rules to approve a method of service that is permitted by its own law, even if the method would not be permitted if the Convention did apply. But if the judgment ultimately will have to be enforced abroad, then it’s a really good idea to talk with counsel in the foreign country to make sure that whatever method of service you choose will lead to a US judgment that the foreign court will be willing to enforce.

2. If the Convention does apply, then the only way to serve process on the defendant is via a method permitted by the Convention. You point out that in some cases it’s not necessary to serve process (e.g., the defendant is willing to appear and answer without service of a summons).

3. I don’t think your point (3) is right. Suppose you know where the defendant is, and the Convention therefore applies. If the Mexican central authority can’t or won’t make service, then you’ve got a problem. If the Central Authority doesn’t respond at all to your request for service, despite your diligent efforts, then you can ask the US court to enter a default judgment. See Article 15. But if the Central Authority certifies that it can’t make service for one reason or another, or affirmatively refuses to make service under Article 13, then what do you do? The best answer, from the perspective of US law, is to find a method of service that does not require transmission of the papers to the foreign country. So, for example, if the foreign defendant has a US lawyer, you can ask the US court to permit you to serve the papers on the lawyer (if the rules of your court permit this–in federal practice, this is permissible under Rule 4(f)(3)). But again, if the judgment will have to be enforced abroad, you should get advice from local counsel about whether the foreign court will enforce a judgment in these circumstances. In any case, I don’t think that service by mail in Mexico will be permissible.

I hope this helps!

Thank you for all the information on your website.

I help pro se litigants, many Spanish speaking, who are trying to divorce spouses in Mexico or get custody of their kids in the U.S. when the other parent is in Mexico.

Is this the state of the law in light of Mexico’s clarifications?

If the defendant’s whereabouts in Mexico are unknown, the Hague Convention does not apply, and the plaintiff can seek, through the U.S. court, alternative service via email, facebook, etc.

If the defendant’s whereabouts in Mexico are known, the plaintiff must 1) have the defendant accept service voluntarily via signing an acceptance of service and returning original to court/plaintiff; 2) appear voluntarily via filing an answer not contesting jurisdiction; or 3) attempt Hague service.

If Hague service is not accomplished (Mexico is unable to serve), plaintiff can serve by other means, like mail, as long as plaintiff ends up with proof of actual service (i.e., signature on Fed Ex slip). In this case, plaintiff can file a proof of service and proceed with case in U.S., getting default if defendant does not file an answer.
(Hague, section 15, first paragraph?) Or does Article 21, which you quoted prohibit this?

It would be nice to have an easy flowchart of Hague service in Mexico. 🙂