The Doctrine of Patia Potestas Confers Child Custody Upon Mexican Nationals Over Their Children and is Entitled to Full Faith and Credit in North Carolina Courts

            

Patia Potestas is a doctrine of custodial authority of Roman origin which originally conveyed absolute and despotic rights of a father (Paterfamilias) over his children. Gonzales v. Preston, 107 F. Supp 3d 1226 (M.D. Ala. 2015); Saldivar v. Rodela, 879 F. Supp. 2d 610 (W.D. Tex. 2012); Patricia Begne, Symposium on Comparative Custody Law, North American Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527 (Summer 2005). As the head of his household, Roman law also bestowed upon the father similar power over the persons of his grandchildren, and other descendants. William Smith, Patria Potestas in John Murray, A Dictionary of Roman Antiquities 873 (London 1875). Whether this power in its extreme forms was actually employed on any consistent basis is a matter of debate. See Steven Thomson, Was Ancient Rome a Dead Wives Society? What Did the Roman Paterfamilias Get Away With? Journal of Family History V. 31, No. 1 (January2006), 3-27. Nevertheless, it is clear that the Roman Paterfamilias did enjoy widespread authority over the activities of his family relations until his death, unless he had previously emancipated a family member from such authority. Id.


The doctrine of Patia Potestas continues to have legal vitality today. The most notable example can be found in the laws of the State of Mexico which has codified the doctrine in its Federal Civil Code. C.C.D.F. art. 411 ("In the relationship between ascendants and descendants, children, regardless of their age, status or other conditions shall honor and respect their parents and other relatives"). The present incarnation of Patria Potestas has evolved from being purely authority to be exercised by the male head of the household to a more gender neutral duty which not only provides custodial authority to both parents but also imposes obligations upon parents to provide for the needs of their children and for children to obey their parents. Patricia Begne, Symposium on Comparative Custody Law, North American Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527 (Summer 2005). As a codified legal doctrine, Patria Potestas "constitutes the 'most comprehensive' right that a parent can exercise over the person and property of his or her minor children." Saldivar v. Rodela, 879 F. Supp. 2d 610 (W.D. Tex. 212). Furthermore, it creates a constellation of legal rights for each biological parent over a child, starting with formal custody but also includes the right to care for the child and make substantive decisions about the child’s life.Gonzales v. Preston, 107 F. Supp 3d 1226 (M.D. Ala. 2015); Patricia Begne, Symposium on Comparative Custody Law, North American Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527 (Summer 2005). 


With the immigration of large numbers of individuals and families from the State of Mexico each year,, litigation over issues of child custody among persons from whose origins are from the State of Mexico will naturally require examining whether the doctrine of Patia Potestas applies. If in fact it I found to apply, a reviewing court must give full faith and credit to the custodial authority imposed by Mexican Law in the same way it would do so with regard to a formal child custody order.Diaz v. Ibarra, No. CV-19-03183-PHX-DWL (D. Ariz. Sep. 13, 2019). Whallon v. Lynn, 230 F.3d 450 (!rst Cir. 2000); Gonzalez v. Pena, 194 F. Supp. 3d 897 (D. Ariz. 2016); DeLaRiva v. Soto, 183 D.Supp. 3d 1182 (M.D. Fla. 2016); Aguilera v. De Lara, 2014 WL3427548, 2 & n 1 (D. Ariz. 2014); Seaman v. Peterson, 762 F. Supp. 2d 1363 (M.D. Ga. 2011).