## Facts

- Two separate child-custody disputes arose in Mexico’s Third Circuit and involved petitions for provisional (interim) custody orders.
- In both disputes, the requesting parent sought interim relief through the preliminary-remedies procedure in Article 249 of the Code of Civil Procedure of the State of Jalisco.
- Article 249 authorized a court to grant preliminary relief without first hearing from the opposing party, with the stated aim of preserving the status quo while the case proceeded.
- In each dispute, the trial court granted a provisional custody order to one parent without first giving the other parent an opportunity to be heard.
- The cases were reviewed on appeal by different collegiate panels within the Third Circuit, and the panels issued conflicting theses about whether the Constitution permits using Article 249 to grant provisional custody ex parte.
- The Fifth Civil Panel concluded that Mexico’s constitutional guarantee of a hearing (garantía de audiencia) required giving the opposing parent—and the minor—an opportunity to be heard before issuing a provisional custody order.
- The Fourth Civil Panel reached the opposite conclusion and treated the ex parte custody order as permissible under Article 249 without a prior hearing for the opposing parent.
- A contradiction-of-theses proceeding (Contradicción de tesis 141/2002-PS) was initiated before the Supreme Court of Justice of the Nation (SCJN) to settle the conflict and set a single controlling criterion.

## Issues

1. Whether Article 249 of the Jalisco Code of Civil Procedure permits a court to issue a provisional child-custody order without first hearing the opposing parent, or whether the constitutional guarantee of a prior hearing requires an opportunity to be heard before issuance.
2. Whether, before entering a provisional custody order that affects a child’s living arrangements and parental custody rights, the court must also hear the minor.

## Decision

- The SCJN accepted the contradiction-of-theses proceeding to resolve the inconsistent interpretations issued by the Fourth and Fifth Civil Panels of the Third Circuit.
- The SCJN adopted the Fifth Civil Panel’s position and rejected the Fourth Civil Panel’s position.
- The SCJN held that the constitutional right to be heard limits the use of Article 249 in child-custody matters: a provisional custody order that affects custody rights requires an opportunity for the opposing parent and the minor to be heard before the order is issued.

## Legal Principles

- The constitutional guarantee of a hearing applies to provisional custody determinations that materially affect parental rights and a child’s custodial situation.
- A state-law preliminary-remedies mechanism authorizing relief without hearing the opposing party cannot be used to dispense with the constitutional hearing requirement in custody disputes.
- When a provisional custody measure will alter custody in a meaningful way, the affected parent must be given an opportunity to be heard before the measure is imposed.
- Because provisional custody orders directly affect the child, the minor must also be given an opportunity to be heard before the temporary custody decision is made, in a manner suitable to the child’s circumstances.

## Conclusion

In Contradicción de tesis 141/2002-PS (2004), the SCJN resolved a conflict between the Fourth and Fifth Civil Panels of the Third Circuit by holding that Article 249’s ex parte preliminary-remedies procedure cannot be applied to grant provisional custody orders without first providing the opposing parent and the minor an opportunity to be heard, and it adopted the Fifth Panel’s thesis as the controlling rule.


Fourth v. Fifth Civil Panel of the Third Circuit, Contradiction of Theses 141/2002-PS (2004)