Filed: Jan. 08, 2014
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2237 _ SIBUSISO LANGA, SOUTH AFRICA v. LULAMO LANGA, Sibusiso Langa, Appellant _ On Appeal from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.
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2237 _ SIBUSISO LANGA, SOUTH AFRICA v. LULAMO LANGA, Sibusiso Langa, Appellant _ On Appeal from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. T..
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NOT PRECEDENTIAL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)
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OPINION OF THE COURT
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GREENBERG, Circuit Judge.
This matter comes on before this Court on Sibusiso Langa‟s appeal from an order
of the District Court dated April 8, 2013, denying his petition against his wife, Lulamo
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Langa, seeking the removal to South Africa from the United States of the parties‟ ten-
year 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 family‟s
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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
petitioner‟s custody rights if a child who is habitually a resident of one country
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immediately before his removal is removed from that country without the petitioner‟s
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 child‟s 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 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.
Id. at 224. Second, he contends that we should view the case from the twins‟ perspective
and thus should reject the District Court‟s 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 Court‟s 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.
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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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