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In Baxter v. Baxter, 324 F.Supp.2d 536 (D.
Delaware, 2004), the court noted that the Hague Convention does not
define the term "habitual residence". However, in Feder v. Evans-Feder,
63 F.3d 217 (3d Cir.1995), the Third Circuit interpreted habitual
residence to mean: [T]he place where he or she has been physically
present for an amount of time sufficient for acclimatization and which
has a "degree of settled purpose" from the child's perspective. We
further believe that a determination of whether any particular place
satisfies this standard must focus on the child and consists of an
analysis of the child's circumstances in that place and the parents'
present, shared intentions regarding their child's presence there.
It concluded that the Child's habitual residence was
Australia. The Child, until the summer of 2003, was a habitual resident
of Australia. Although Petitioner, Respondent, and the Child frequently
moved, Petitioner and Respondent held a shared intention, until the
summer of 2003, that the Child be a habitual resident of Australia.
It also found that Petitioner consented to the Child's
removal to the United States in the summer of 2003.
Petitioner and Respondent agreed that it was in the best
interests of the Child to remove the Child to the United States based on
the harsh living conditions the family, and particularly the Child,
experienced in the Tiwi Islands. This finding was supported by the
Petitioner and Respondent detailing Petitioner's purchase of one-way
tickets to the United States for both Respondent and the Child,
Respondent's taking her family's "paperwork" to the United States,
including birth certificates, passports, marriage license, immunization
records, and divorce decrees, and the hiring by Respondent's family of a
contractor to enclose a porch at the home of Respondent's family to
provide a permanent play room for the Child.
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