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Thursday, January 9, 2014

Langa v Langa, --- Fed.Appx. ----, 2014 WL 60110 (C.A.3 (N.J.)) [South Africa] [Habitual Residence]

In Langa v Langa, --- Fed.Appx. ----, 2014 WL 60110 (C.A.3 (N.J.))  Sibusiso Langa appealed from an order of the District Court dated April 8, 2013, denying his petition against his wife, Lulamo Langa, seeking the removal to South Africa from the United States of the parties' ten-year old twin sons, Uzoma and Uzile. The Third Circuit affirmed. 

The parties to this proceeding were 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 residence there. 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. 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. 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.  The twins never were enrolled in school in South Africa, and they did not engage in activities with other children. 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.

           The Third Circuit pointed out that the critical question was 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).

         Sibusiso argued on appeal that the District Court erred in relying on what he regarded 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. The Court pointed out that in Feder it explained: “[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.”

The father also argued that the court 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.

The Court of Appeals agreed 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. It declined to repudiate the law that it set forth in Feder and quoted above. The twins' three-week stay with their grandparents in Johannesburg could 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. The Hague Convention simply was not adopted by the adhering parties to require the return of children in situations like the one here.