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    Sibusiso Langa v. Lulamo Langa, 3rd Cir. (2014)

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    The United States Court of Appeals for the Third Circuit affirmed the District Court's denial of a petition seeking the return of twin boys to South Africa under the Hague Convention on the Civil Aspects of International Child Abduction. The petition was brought by the boys' father, Sibusiso Langa, against their mother, Lulamo Langa. The Court agreed with the District Court that the boys' habitual residence before returning to the United States with their mother remained the United States, as their three-week stay in South Africa was insufficient to establish habitual residence there. The Court declined to reject its prior definition of habitual residence from Feder v. Evans-Feder, which included a factor of acclimatization of the

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    Sibusiso Langa v. Lulamo Langa, 3rd Cir. (2014)

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    The United States Court of Appeals for the Third Circuit affirmed the District Court's denial of a petition seeking the return of twin boys to South Africa under the Hague Convention on the Civil Aspects of International Child Abduction. The petition was brought by the boys' father, Sibusiso Langa, against their mother, Lulamo Langa. The Court agreed with the District Court that the boys' habitual residence before returning to the United States with their mother remained the United States, as their three-week stay in South Africa was insufficient to establish habitual residence there. The Court declined to reject its prior definition of habitual residence from Feder v. Evans-Feder, which included a factor of acclimatization of the

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    Filed: 2014-01-08 Precedential Status: Non-Precedential Docket: 13-2237

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    The United States Court of Appeals for the Third Circuit affirmed the District Court's denial of a petition seeking the return of twin boys to South Africa under the Hague Convention on the Civil Aspects of International Child Abduction. The petition was brought by the boys' father, Sibusiso Langa, against their mother, Lulamo Langa. The Court agreed with the District Court that the boys' habitual residence before returning to the United States with their mother remained the United States, as their three-week stay in South Africa was insufficient to establish habitual residence there. The Court declined to reject its prior definition of habitual residence from Feder v. Evans-Feder, which included a factor of acclimatization of the

    Copyright:

    Public Domain
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    93 views5 pages

    Sibusiso Langa v. Lulamo Langa, 3rd Cir. (2014)

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    Scribd Government Docs
    The United States Court of Appeals for the Third Circuit affirmed the District Court's denial of a petition seeking the return of twin boys to South Africa under the Hague Convention on the Civil Aspects of International Child Abduction. The petition was brought by the boys' father, Sibusiso Langa, against their mother, Lulamo Langa. The Court agreed with the District Court that the boys' habitual residence before returning to the United States with their mother remained the United States, as their three-week stay in South Africa was insufficient to establish habitual residence there. The Court declined to reject its prior definition of habitual residence from Feder v. Evans-Feder, which included a factor of acclimatization of the

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    of 5

    NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS


    FOR THE THIRD CIRCUIT
    ________________
    No. 13-2237
    ________________
    SIBUSISO LANGA, SOUTH AFRICA
    v.
    LULAMO LANGA,
    Sibusiso Langa,
    Appellant
    ________________
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Civ. No. 2-13-00945)
    Honorable Kevin McNulty, District Judge
    ________________
    Submitted under Third Circuit LAR 34.1(a)
    December 20, 2013
    BEFORE: JORDAN, VANASKIE, and GREENBERG, Circuit Judges
    (Filed: January 8, 2014)
    ______________
    OPINION OF THE COURT
    ______________

    GREENBERG, Circuit Judge.


    This matter comes on before this Court on Sibusiso Langas appeal from an order
    of the District Court dated April 8, 2013, denying his petition against his wife, Lulamo
    1

    Langa, seeking the removal to South Africa from the United States of the parties tenyear old twin sons, Uzoma and Uzile. Sibusiso brought the petition under the Hague
    Convention on the Civil Aspects of International Child Abduction and the International
    Child Abduction Remedies Act, 42 U.S.C. 11601 et seq. Sibusiso based his petition on
    the charge that Lulamo wrongfully removed the twins from South Africa, which he
    regards as their habitual residence, and took them to the United States without his
    consent. The District Court denied the petition in a sensitive and well-crafted opinion
    dated April 8, 2013, that accompanied the order of that date.
    Inasmuch as the District Court fully set forth the material facts we need not repeat
    them at length. Instead, we limit our factual recital to critical points. The parties to this
    proceeding are both South Africans, but prior to 2012 they had resided in the United
    States, where their twins were born on May 15, 2002, in Suffern, New York. On July 25,
    2012, Lulamo left the United States and went to South Africa with the parties twin sons,
    who at least until that time had been residents of the United States. When Lulamo went
    to South Africa with the twins, her husband was already there as he earlier had gone to
    that country for business reasons. As it happened he could not leave South Africa
    because he was involved in criminal proceedings there arising out of a fatal automobile
    accident. On August 18, 2012, about three weeks after Lulamo went to South Africa with
    the twins, she returned with them to the United States without the consent or even the
    knowledge of her husband.
    Prior to the time that Lulamo left the United States with the twins to go to South
    Africa, the parties anticipated moving to that country as a family to establish the familys
    2

    residence there. As might be expected, this move was a complex undertaking involving
    the disposal of assets in the United States, the shipment of personal property to South
    Africa, and the arrangement for changing the twins schools, in itself a complex matter
    particularly because the twins were not fluent in all of the languages in use in South
    Africa. Yet there is no doubt that the parties were working toward the goal of relocating
    to South Africa. However, when Lulamo arrived in South Africa with the twins, Lulamo
    and the twins did not reunite with her husband as Sibusiso and Lulamo stayed in different
    cities. In fact, Lulamo and the twins never established what would be regarded as a
    conventional residence in South Africa as they stayed with her parents in Johannesburg
    during the entire three weeks they were there. Moreover, as the District Court pointed
    out, the twins never were enrolled in school in South Africa, and they did not engage in
    activities with other children. Furthermore, neither parent arranged for housing for the
    family in South Africa prior to the time that Lulamo and the twins returned to the United
    States.
    Under the Hague Convention, the critical question is whether prior to August 18,
    2012, the date the children left South Africa to return to the United States, they had
    become habitual residents of South Africa. See Karkkainen v Kovalchuk, 445 F.3d 280,
    287 (3d Cir. 2006). In this regard, as material to this case, the Hague Convention, to
    which both South Africa and the United States are parties, provides that it is a breach of a
    petitioners custody rights if a child who is habitually a resident of one country

    immediately before his removal is removed from that country without the petitioners
    consent. See 42 U.S.C. 11603(e)(1)(A).1
    Sibusiso advances two principal arguments on this appeal. First, he claims that the
    District Court erred in relying on what he regards as dicta from Feder v. Evans-Feder, 63
    F.3d 217 (3d Cir. 1995), in incorporating an acclimatization factor into its
    consideration of the twins habitual residence. In Feder we explained that:
    [W]e believe that a childs habitual residence is the 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 childs
    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 childs circumstances in that place and the parents
    present, shared intentions regarding their childs presence there.
    Id. at 224. Second, he contends that we should view the case from the twins perspective
    and thus should reject the District Courts conclusion that the twins habitual residence
    had not become South Africa prior to their return to the United States.
    In our review of this matter, we have considered the cases that we already have
    cited and Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004), all cases that the District
    Court cited and considered, as well as the additional cases that Sibusiso has cited in his
    brief on this appeal. After our review of the law and the facts of this case we agree with
    the District Court that the twins habitual residence before they returned with their
    mother to the United States was where it always had been, i.e., in the United States.
    1

    The District Court had jurisdiction under 28 U.S.C. 1331 and 42 U.S.C. 11603(a)
    and we have jurisdiction under 28 U.S.C. 1291. We are exercising plenary review on
    this appeal as we do not regard the District Courts opinion as being predicated on
    findings of fact but instead view it as being predicated on the application of law to
    undisputed historical facts. See Karkkainen, 445 F.3d at 291.
    4

    Moreover, we decline to repudiate the law that we set forth in Feder and quoted above.
    The twins three-week stay with their grandparents in Johannesburg surely cannot be
    regarded, whether viewed objectively or subjectively, as sufficient to establish their
    habitual residence in South Africa, no matter how that term is defined. We are satisfied
    that the Hague Convention simply was not adopted by the adhering parties to require the
    return of children in situations like the one here.
    The order of April 8, 2012, will be affirmed. No costs will be allowed on this
    appeal.

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