Egervary v. Young, CIVIL ACTION No. 96-3039 (E.D. Pa. 9/__/2001)
| Decision Date | 01 September 2001 |
| Docket Number | CIVIL ACTION No. 96-3039. |
| Parties | Oscar W. Egervary, v. Virginia Young, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
This case is a Bivens action alleging the violation of plaintiff's due process rights during an international child custody dispute and has been the subject of four prior memorandum opinions. See Egervary v. Young, No. 96-3039, 1997 WL 9787 (E.D.Pa. Jan. 7, 1997) (Troutman, J.) ("Egervary I"); Egervary v. Rooney, 80 F. Supp.2d 491 (E.D.Pa. 2000) (O'Neill, J.) ("Egervary II"); Egervary v. Rooney, No. 96-3039, 2000 WL 1160720 (E.D.Pa. Aug. 15, 2000) (O'Neill, J.) ("Egervary III"); and Egervary v. Young, ___ F. Supp.2d ___, No. 96-3039, 2001 WL 569259 (O'Neill, J.) ("Egervary IV"). Presently before me are: 1) the federal defendants' motion to dismiss the amended complaint for improper venue pursuant to Rule 12(b)(3); 2) the federal defendants' motion to dismiss the amended complaint for insufficient service of process pursuant to Rule 12(b)(5); 3) the federal defendants' motion to dismiss the amended complaint for failure to state a claim pursuant to Rule 12(b)(6) on two grounds, statute of limitations and qualified immunity; and 4) the federal defendants' motion for summary judgment pursuant to Rule 56 on the grounds that they had no personal involvement in the alleged constitutional tort. For the reasons stated below, the motions will be DENIED.
Plaintiff Egervary was born in 1955 in Hungary, where he suffered political oppression at the hands of the then-communist government because his father was a church official.1 See Egervary Aff. (June 9, 1994) ¶¶ 1-2. In 1980, he emigrated to the United States as a political refugee. Id. He became a U.S. citizen in 1987. Id. ¶ 3.
In 1990, Egervary became romantically involved with Aniko Kovacs, a Hungarian national who came to the U.S. to study music. Id. ¶ 4. They briefly returned to Hungary in 1991 to be wed by Egervary's father. Id. Thereafter, they established their marital residence in Hackensack, New Jersey. Id. ¶ 5. Their son, Oscar Jonathan Egervary, was born on Independence Day, July 4, 1992. Id. ¶ 6.
In February 1993, Kovacs, a concert violinist, traveled to Hungary with Oscar to perform in a concert to be held in Budapest that March. Id. ¶ 7. They were scheduled to return to the U.S. on April 6, 1993, and Egervary had purchased a ticket to fly to Hungary and escort them back. See Egervary Aff. (July 7, 1994) ¶ 2. A few days before, however, Kovacs called Egervary and said she needed to stay until the beginning of May to perform in another concert. Id. Shortly before she and Oscar were to return in May, Kovacs again called Egervary and said that she would be staying in Hungary because she had an opportunity to take a teaching position in Budapest until the end of the year. Id. Shortly thereafter, she separated from Egervary and informed him that she would not return to the U.S. and would not return Oscar to this country. Id.
In June and July of that year, Egervary traveled to Hungary in an attempt to reconcile with his wife and bring Oscar home. Id. In July, Kovacs returned to the U.S. with Egervary for a short time, but she insisted on leaving Oscar in Hungary with her parents. Id.
In August, Egervary returned to Hungary and stayed for three months in another attempt to reconcile with his wife. Id. During that stay, he took a job teaching English in order to support himself. Id. He stayed there from approximately August to November of 1993. Id. He brought some personal belongings from the U.S., but he did not plan on establishing residence there and did not register with the Hungarian government as a resident. Id.
In September, Kovacs took Oscar to an undisclosed location in Hungary in an apparent attempt to hide the child from his father. See Egervary Aff. (June 9, 1994) ¶ 8. At that time, she left Egervary a letter that, in part, stated: "I'd like to notify you in this farewell letter that I've moved out from you, together with Ossika [i.e., Oscar] . . . I moved to a location unknown to others deliberately and I didn't move to my parents on purpose." See Egervary Aff. (July 7, 1994) ¶ 3. Egervary searched for his son for approximately three months. Id. During that time, he consulted with the American Embassy in Budapest and was told that if he could find Oscar he was free to take the child back to the U.S. Id.
On December 18, 1993, Egervary found Kovacs and Oscar leaving her parents' apartment house in Budapest. Id. According to Egervary, Oscar's clothing was "dirty and ragged" and the boy appeared undernourished. See Egervary Aff. (June 9, 1994) ¶ 9. Egervary took Oscar from Kovacs and left Hungary with him the next day. Id. Upon their return to the U.S., Egervary set up residence with his son in Monroe County, Pennsylvania. Id.
On May 13, 1994, members of the Pennsylvania State Police and U.S. Marshals arrived at Egervary's home with an order signed by the Honorable William J. Nealon of the United States District Court for the Middle District of Pennsylvania. Id. ¶ 10. Pursuant to the order, Oscar was removed from Egervary's custody and delivered to defendant Frederick P. Rooney, Esq. Id. Rooney then took Oscar to the airport, flew him to Europe, and returned the child to his mother. See Rooney Dep. at 169. All parties concede that Egervary was given no notice of or opportunity to be heard in the ex parte Hague Convention/ICARA proceedings that led to the order.
The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral international treaty on parental kidnaping adopted by the United States and other nations in 1980. The goal of the Convention is to "protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." See Hague Convention, Preamble. The Convention reflects "a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior." Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995). The Convention is "designed to restore the `factual' status quo which is unilaterally altered when a parent abducts a child." Id. The United States has implemented the Hague Convention by enactment of the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq. ICARA vests state and district courts with concurrent jurisdiction over claims arising under the Convention and empowers those courts to order the return of kidnaped children. See 42 U.S.C. § 11603. An ICARA hearing is not a custody hearing. See Blondin v. Dubois, 189 F.3d 243, 245 (2d Cir. 1999) (), quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993); Hague Convention, Article 19 (). An ICARA proceeding merely determines which nation should hear the underlying custody claim. See Blondin, 189 F.3d at 246.
An ICARA petitioner bears the burden of proving by a preponderance of the evidence that the child in question has been wrongfully removed from the nation of his or her "habitual residence" immediately before the removal. See 42 U.S.C. § 11603(e)(1)(A); Hague Convention, Articles 3 and 4.2 If the petitioner establishes that the removal was wrongful, the child must be returned unless the respondent can establish one or more of four defenses: 1) the ICARA proceedings were not commenced within one year of the child's abduction; 2) the petitioner was not actually exercising custody rights at the time of the removal; 3) there is a grave risk that return would expose the child to "physical or psychological harm or otherwise place the child in an intolerable situation"; or 4) return of the child "would not be permitted by the fundamental principles . . . relating to the protection of human rights and fundamental freedoms." Id.; Hague Convention, Articles 12, 13 and 20. The first two defenses can be established by a preponderance of the evidence; the last two must be established by clear and convincing evidence. Id.; 42 U.S.C. § 11603(e)(2).
ICARA also provides that notice "be given in accordance with the applicable law governing notice in interstate child custody proceedings." See 42 U.S.C. § 11603(c). Courts interpreting this provision have found the "applicable law" to be the Parental Kidnaping Prevention Act, 28 U.S.C. § 1738A ("PKPA"), and the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S.A. § 5341, et seq. ("UCCJA"). See Brooke v. Willis, 907 F. Supp. 57, 60 (S.D.N.Y. 1995); Klam v. Klam, 797 F. Supp. 202, 205 (E.D.N Y 1992). Both PKPA and UCCJA provide for "reasonable notice and opportunity to be heard." See 28 U.S.C. § 1738A(e); 23 Pa.C.S.A. § 5345. This generally means "a plenary hearing at which both sides are heard." Klam, 797 F. Supp. at 205. However, because there is an inherent risk of flight during the pendency of a petition, courts "may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition." See 42 U.S.C. § 11604(a).
The Convention also provides that "a Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities." See Hague Convention, Article 6. The Bureau of Consular Affairs of the U.S....
To continue reading
Request your trial