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In Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) the
Sixth Circuit Court of Appeals pointed out that the Convention does not
define "habitual residence" and that the British courts have provided
the most complete analysis, referring to In Re Bates,1 where
the High Court of Justice concluded that there is no real distinction
between ordinary residence and habitual residence. That court also added
a word of caution: "It is greatly to be hoped that the courts will
resist the temptation to develop detailed and restrictive rules as to
habitual residence, which might make it as technical a term of art as
common law domicile. The facts and circumstances of each case should
continue to be assessed without resort to presumptions or
pre-suppositions."
The Sixth Circuit agreed with the Bates Court that habitual residence
must not be confused with domicile. It concluded that to determine the
habitual residence, the court must focus on the child, not the parents,
and examine past experience, not future intentions. A person can have
only one habitual residence. On its face, habitual residence pertains to
customary residence prior to the removal. The court must look back in
time, not forward. The child’s habitual residence can be "altered" only
by a change in geography and the passage of time, not by changes in
parental affection and responsibility. The change in geography must
occur before the questionable removal.
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