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That’s Not What I Meant

November 7, 2019

US court hold that “thumbs-up” emoji did not amount to consent for removal of child from country

In Bardales v. Lamothe, Judge Eli Richardson of the US District Court for the Middle District of Tennessee (Nashville) presided over an application under the Hague Convention on the Civil Aspects of Child Abduction, in which a Honduran father alleged that his child’s mother (from whom he was separated) had abducted their child from Honduras and taken him to the US, in violation of the custody arrangement in place. The father proved to the court’s satisfaction that he had been exercising his parental and custodial duties at the time the child was removed, and that his custodial rights under Honduran law had been breached by the mother’s removal of the child.

However, the mother defended, in part, on the basis that while the father had not consented to her removing the child, he had subsequently acquiesced to her keeping the child in the US permanently. In support of this she produced a series of text messages, in one of which she told the father that they had arrived in the US and he responded with a “thumbs-up” emoji. The father testified that this only meant that he was indicating that she should enjoy the company of her mother (with whom she was staying), and not that he was consenting to the child remaining there. In another text exchange the father stated that he was going to “work hard, get his papers and come to the United States,” though the father testified that he meant he was intending to come to the US to retrieve his son, and not to live there. In still another, the mother texted the father that their son “would be an important man” in the US, to which the father replied, “perfect.”

Judge Richardson found that as evidence of acquiescence, these texts were “ambiguous, at best,” and any inference of acquiescence that could be drawn was rebutted by the fact that the father had consistently made efforts to get the child back, in part by enlisting the help of the Honduran authorities and, eventually, bringing the court application. The mother had not proven, on a preponderance of the evidence, that the father had acquiesced. In the result, the court ordered that the child be returned to Honduras.

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