of residing in Hungary. Oscar was in Hungary only because his mother took
him there, and she may have taken him there under false pretenses. Also
relevant to this inquiry is the fact that Oscar is a United States
citizen and at that point had spent the overwhelming majority of his life
Finally, even if the court rejected these arguments, Mr. Egervary would
have had the opportunity to prove by clear and convincing evidence that
Oscar's return would expose the child to "physical or psychological harm
or otherwise place the child in an intolerable situation." See
42 U.S.C. § 11603(e)(2)(A); Hague Convention, Article 13.
Specifically, Mr. Egervary could have developed the evidence that when he
found his son in Hungary in December 1993 the boy "appeared
undernourished" and wore "dirty and ragged" clothing. See Egervary Aff.
The Court makes no finding as to whether Mr. Egervary would have
prevailed on any of these arguments. Such a finding would not be possible
without a full evidentiary hearing and is likely irrelevant to this
case. It is nonetheless clear that plaintiff was deprived of any
opportunity to present these arguments. The Court recognizes, however,
that the mere fact that defendants violated plaintiff's statutory rights
does not necessarily prove that they also violated his constitutional
rights. Cf. Robison, 821 F.2d at 923 ("Federal constitutional standards
rather than state standards define the requirements of procedural due
process."). Therefore, the Court must also consider the due process
requirements that apply in ordinary, i.e., non-Hague Convention, custody
b. Prior Process
Obviously, plaintiff's due process rights would not have been violated
if he had received notice and opportunity to be heard prior to Oscar's
removal from his custody. However, "due process is flexible and calls for
such procedural protections as the particular situations demands."
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484
(1972). For this reason, courts have found that even though parents have
a fundamental liberty interest in the custody of their children they do
not always have a right to prior process when the state removes their
children from their custody.
Courts agree that "in emergency circumstances which pose an immediate
threat to the safety of a child, officials may temporarily deprive a
parent of custody without parental consent or a court order."
Hollingsworth, 110 F.3d at 739. See also Jordan, 15 F.3d at 343 (parents
can be deprived of custody of their child without prior process "where
emergency action is necessary to avert imminent harm to a child.");
Weller, 901 F.2d at 393 ("Due process does not mandate a prior hearing
where emergency action may be needed to protect a child."); Doe v.
Hennepin County, 858 F.2d 1325, 1329 (8th Cir. 1988) (the state may
intervene on behalf of "abused children" without prior notice); Robison,
821 F.2d at 921 ("officials may temporarily deprive a parent of custody
in `emergency' circumstances"); Lossman, 707 F.2d at 291 ("When a child's
safety is threatened, that is justification enough for action first and
hearing afterwards."); Duchesne, 566 F.2d at 826 (child can be removed
without prior process in "extraordinary situations").
It is unclear whether the facts in this case justified Oscar's removal
without prior process. In all the cases cited above where an emergency
removal was found to be justified, there was specific evidence of an
imminent threat of severe neglect or physical abuse. See Jordan, 15 F.3d
at 336 (neglect); Weller, 901 F.2d at 391 n. 7 (physical abuse); Doe, 858
F.2d at 1326 (sexual abuse); Robison, 821 F.2d at 916 (sexual abuse);
Lossman, 707 F.2d at 289 (physical abuse and death threats); Duchesne,
566 F.2d at 822 (neglect). By contrast, in Hollingsworth, where there
were merely general allegations of "abuse, injury, molestation, and
harassment" but no
concrete evidence of an "immediate threat," the removal without prior
process was found to be unjustified. Hollingsworth, 110 F.3d at 740.
In this case, plaintiff was accused of kidnaping his son. Parental
kidnaping is a serious offense that inherently involves a risk of further
flight, but it is unclear whether that allegation alone is serious enough
to justify emergency action to remove a child from his parent's custody
without prior process. Notably, the court in Kiam found that the bare
allegation of kidnaping and the inherent risk of flight that comes with
it, without more, are insufficient to justify such emergency action.
Kiam, 797 F. Supp. at. 207-07. The court hinted, however, that additional
specific evidence of physical abuse or risk of flight might have justified
emergency action. Id.
While it is likely that the Kiam analysis applies here and plaintiff
was entitled to prior process in these circumstances, the Court need not
resolve the issue because plaintiff was denied a prompt, state-initiated
c. Prompt, State-Initiated Postdeprivation Hearing
Even when an imminent threat of harm justifies removing a child from
their parent's custody without prior process, there must be a prompt,
state-initiated postdeprivation hearing to ratify the removal. See
Jordan, 15 F.3d at 343 ("[T]he requirements of due process may be delayed
where emergency action is necessary to avert imminent harm to a child,
provided that post-deprivation process to ratify the emergency action is
promptly accorded."); Weller, 901 F.2d at 396 ("[E]ven if it is
constitutionally permissible to temporarily deprive a parent of the
custody of a child in an emergency, the state has the burden to initiate
prompt judicial proceedings to ratify its emergency action."); Doe, 858
F.2d at 1329 ("[T]he state may intervene on behalf of abused
children . . . if the state provides an adequate postdeprivation
hearing."); Lossman, 707 F.2d at 291 ("[W]here the state has
a procedure for a prompt, adversary postdeprivation hearing in a child
custody matter and the hearing is held and establishes that the state
officers acted prudently in removing the child from the parent's custody
without a prior hearing, that finding extinguishes a claim that the
failure to hold a predeprivation hearing was a denial of due process.");
Duchesne, 566 F.2d at 826 ("[I]n those `extraordinary situations'
where deprivation of a protected interest is permitted without prior
process, the constitutional requirements of notice and an opportunity
to be heard are not eliminated, but merely postponed.").
Defendants point to two events that supposedly gave plaintiff an
adequate opportunity to be heard after Oscar had been removed from his
custody: the motion for reconsideration before Judge Nealon and the
custody proceedings in Hungary. Neither of these proceedings satisfy due
process because neither was state-initiated and neither was sufficiently
The Duchesne Court explained why a postdeprivation custody hearing must
be initiated by the state:
In this situation, the state cannot constitutionally
"sit back and wait" for the parent to institute
judicial proceedings. It cannot adopt for itself an
attitude of "if you don't like it, sue." The burden
initiating judicial review must be shouldered by the
government. We deal here with an uneven situation in
which the government has a far greater familiarity
with the legal procedures available for testing its
action. In such a case, the state cannot be allowed to
take action depriving individuals of a most basic and
essential liberty interest which those uneducated and
uninformed in legal intricacies may allow to go
unchallenged for a long period of time.
Duchesne, 566 F.2d at 828 (internal cites and quotes omitted). See also
Weller, 901 F.2d at 396. In this case, the motion for reconsideration was
initiated by Mr. Egervary and the Hungarian custody proceedings were
initiated by Ms. Kovacs.
Additionally, neither the motion for reconsideration nor the custody
proceedings were sufficiently prompt to satisfy due process. Although
there is no bright-line rule for deciding whether a postdeprivation
custody hearing is sufficiently prompt, a survey of the case law shows
that the delay should be measured in hours and days, not weeks and
months.*fn8 See Jordan, 15 F.3d at 350-52 (approving of a state statute
that provided for postdeprivation custody hearings "as soon as possible,
but in no event later than seventy-two hours" after the child's
removal); Campbell v. Burt, 949 F. Supp. 1461, 1468 (D.Haw. 1996)
(holding that a postdeprivation hearing one week after the state takes
custody violates due process); Lossman, 707 F.2d at 290 (approving of a
postdeprivation hearing that occurred eight days after the state took
custody, but noting that the hearing had been scheduled to occur
earlier, but the parent requested additional time for preparation);
Weller, 901 F.2d at 396 (holding that a postdeprivation hearing four
months after the state takes custody violates due process); Duchesne, 566
F.2d at 826 (holding that a postdeprivation hearing twenty-seven months
after the state takes custody violates due process).
In this case, both of the alleged postdeprivation hearings happened
well outside of the constitutionally permissible time frame. The motion
for reconsideration was filed approximately two weeks after Oscar was
returned to Hungary. See Docket for In re Oscar Jonathan Egervary, No.
94-707, M.D.Pa. 1994. Oral arguments on that motion occurred more than
two months later on July 25, 1994. Id. As of December, approximately
seven months after Oscar was taken from Mr. Egervary's custody, the
motion remained undecided and the case was "closed for statistical
purposes." See Order by Judge Nealon dated December 23, 1994 (dismissing
the case "for statistical purposes" and without prejudice in light of the
Hungarian proceedings). Such a timetable is typical when federal courts
deal with complex motions. Nonetheless, seven months is not sufficiently
prompt for due process purposes.
The Hungarian custody proceedings were even less prompt. The record
shows that Mr. Egervary had no notice of the Hungarian proceedings until
approximately a month after Oscar was taken from his custody. See Egervary
Dep. at 85. A hearing in the matter was later scheduled for January
1995. See Letter from Gary L. Azorsky, Esq. to Judge Nealon dated
December 19, 1994 at 2. The Hungarian courts did not resolve the issue
until a final divorce decree between Mr. Egervary and Ms. Kovacs was
entered in April 1996,
nearly two years after Oscar was returned to Hungary. See Egervary Dep.
Defendants rely on Dincer v. Dincer, 549 Pa. 309, 701 A.2d 210 (1997),
in an attempt to show that plaintiff was afforded "full due process" in
the Hungarian proceedings. See Nallin Mem. at 11. This reliance is
misplaced. In Dincer, a mother brought her three children from Belgium to
Montgomery County, Pennsylvania, ostensibly so that the children could
visit their grandparents. Approximately two weeks after their arrival,
the mother filed for custody of the children in Pennsylvania state
court. Shortly thereafter, the father, who had remained in Belgium, filed
for custody in the courts of that nation. The mother received notice of
the Belgian proceedings, but failed to appear. The Belgian courts then
awarded custody to the father. The mother nonetheless pressed the
Pennsylvania court to award custody to her. The Pennsylvania court
refused, finding that the Belgian custody order must be given comity
because Belgium was the children's "home state" under the UCCJA. Id. at
321, 701 A.2d 210. In affirming the trial court, the Pennsylvania Supreme
Court stated in dicta that the mother had been afforded due process in
Belgium because she received notice and opportunity to be heard. Id.
The differences between this case and Dincer are obvious. In Dincer the
state never took custody of the children; therefore, no postdeprivation
hearing was possible or necessary. While the mother surely acted
improperly by bringing the children here under false pretenses, as a
private party her actions were beyond the reach of the Due Process
Clause.*fn9 Moreover, the Dincer Court found that the mother had been
afforded due process in the Belgian proceedings because she had received
notice and opportunity to be heard. Id. It is undeniable that the
plaintiff received neither in this case. Dincer therefore does nothing to
undermine the conclusion that plaintiff was denied a prompt,
state-initiated and constitutionally adequate postdeprivation hearing in
Although the previous analysis leads to the conclusion that defendants
violated plaintiff's due process rights, defendants make four arguments
against holding them liable in a Bivens suit. Defendants argue that: 1)
plaintiff waived his constitutional claim by withdrawing the motion for
reconsideration before Judge Nealon; 2) plaintiff suffered no compensable
damages; 3) plaintiff impermissibly seeks to collaterally attack the May
13th Order; and 4) courts have been "reluctant" to impose liability upon
individuals participating in the return of kidnaped children. None of
these arguments is persuasive.
Defendants first argue that plaintiff waived his constitutional claim
because he "withdrew" his motion for reconsideration of the May 13th
Order. See Rooney Mem. at 6; Nallin Mem. at 2. The Court rejects this
argument because there is an issue of fact as to whether plaintiff
withdrew the motion, and even if he did, as a matter of law the withdraw
did not waive his constitutional claim.
a. Waiver as an Issue of Fact
The starting point for defendants' waiver argument is the following
Although plaintiff filed a Motion for Reconsideration
which was fully briefed, and ready for decision,
plaintiff withdrew his motion and advised the Court he
would prosecute his divorce and custody proceedings in
Hungary. Plaintiff never requested that Judge Nealon
consider, amend, vacate or in any way change his May
13, 1994 Order.
Rooney Mem. at 6 (emphasis added).
Defendants cite three pieces of evidence in support of this factual
claim, but all three undermine defendants' argument. See Nallin Mem. at
5-6. The first, the letter in which plaintiff allegedly withdrew the
motion, ends with the following statement:
[S]ince the issues regarding the propriety of Mrs.
Kovacs' initial petition have now been fully briefed,
I dutifully and respectfully invite Your Honor to
grant Mr. Egervary's motion for reconsideration and
order the immediate return of his child; in that
event, the proper jurisdiction for ruling on the
custody issue could be determined by the appropriate
forum absent the unfair advantage obtained by Mrs.
Kovacs through improper unilateral action.
See Letter from Gary L. Azorsky, Esq. to Judge Nealon dated December 19,
1994 at 2 (emphasis added). This passage directly contradicts defendants'
claim that plaintiff "never requested that Judge Nealon reconsider,
amend, vacate or in any way change his May 13, 1994 Order."