Pozniak v. Shwartsman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

NATALIA POZNIAK,

:

Petitioner,

: MEMORANDUM DECISION

AND ORDER

:

– against –

20-CV-2956 (AMD) (RML)

:

:

VLADIMIR SHWARTSMAN,

Respondent. :

:

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A NN M. DONNELLY, United States District Judge:

The petitioner, Natalia Pozniak, brought this c ase against the respondent, Vladimir

Shvartsman1, pursuant to the Hague Convention on th e Civil Aspects of International Child

Abduction (“Hague Convention”), as implemented by the International Child Abduction

Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. The petitioner, a Ukrainian citizen residing

in Israel, seeks the immediate return of her nine-year-old son, S.P., to Israel, and claims that the

respondent, S.P.’s father, wrongfully retained S.P. in the United States.

I held a one day bench trial on January 25, 2021, at which the petitioner, the respondent

and two expert witnesses testified. The parties offered evidence on three contested issues: (1)

S.P.’s habitual residence; (2) whether the petitioner agreed that the respondent could keep S.P. in

the United States; and (3) whether S.P. will face a grave risk of harm if he is returned to Israel.

(See ECF No. 50 at 5; ECF No. 51 at 2.) In addition, the parties submitted post-trial briefing.

(ECF Nos. 50-53.) After carefully considering all of the evidence, the parties’ submissions and

1 The petitioner and the respondent spell the respondent’s last name differently in their filings. I use the

respondent’s spelling.

the applicable law, I make the following findings of facts and conclusions of law, and grant the

petition for the return of S.P. to Israel.

FINDINGS OF FACT

1. The Parties

The petitioner, a Ukrainian citizen, was born in the former Soviet Union, and has lived in

Israel continuously since 2014. (Ex. 22 (ECF No. 34) ¶ 1.) The respondent, an Israeli citizen,

was born in Kazakhstan, and currently lives in Queens, New York. (Id. ¶ 2.) The petitioner and

respondent have one child together, nine-year-old S.P., who was born in Ukraine and moved to

Israel with the petitioner when he was a young child. (Id. ¶¶ 3, 9.) S.P. is a dual Israeli-

Ukrainian citizen. (Id. ¶¶ 3, 10.)

2. S.P.’s Childhood in Israel

The petitioner and the respondent met online in about May of 2010. (Id. ¶ 6.) After

communicating online and by phone for several months, the petitioner visited the respondent in

Israel in August of 2010, and stayed with him in his home. (Id.) The petitioner learned that she

was pregnant in October of 2010, and returned to Ukraine that month. (Id.)

In June of 2011, the petitioner gave birth to S.P. in Lugansk, Ukraine. (Id. ¶ 7.) S.P.’s

birth certificate lists the petitioner as his mother and “Vladimir Pozniak” as his father. (Id. ¶ 7.)

The petitioner and S.P. lived in Ukraine until they moved to Israel at the end of the summer of

2012. (Id. ¶¶ 7, 8.) They moved back to Ukraine after about a year, but returned to Israel in the

spring of 2014 to live with the respondent. (Id. ¶¶ 8, 9.) The respondent helped S.P. and the

petitioner obtain immigration status in Israel; S.P. became an Israeli citizen, and the petitioner

acquired a work visa and a temporary residence card. (Id. ¶ 10.)

The petitioner and the respondent were never married. (Id. ¶ 5.) After the petitioner

returned to Israel in 2014, she and the respondent lived together at times, and separately at other

times. (See Tr. 56:13-18, 57:16-23; Ex. 22 ¶ 11.) They did not have a formal custody

agreement, but “worked out an informal arrangement pursuant to which both exercised shared

custody over S.P.” (Ex. 22 ¶ 12.) They had “a relationship of mutual understanding and

assistance,” and “communicat[ed] openly about shared custody of their son.” (Id.) There are no

orders or agreements that limit the petitioner’s custodial rights over S.P. under Israeli law. (Id. ¶

13.)

S.P. lived in Israel continuously until the respondent brought him to the United States on

July 19, 2019. (Id. ¶ 9; Tr. 20:24-21:3.) By both parents’ accounts, S.P.’s life in Israel was

“vibrant and fulfilling.” (Ex. 22 ¶ 14.) S.P. “was surrounded by friends and loved ones,”

“including neighbors and friends.” (Id. ¶ 15.) According to the petitioner, S.P. grew up “as a

very happy child;” he enjoyed going to school, had many friends, and participated in activities

including horseback riding and sports. (Tr. 21:4-22:19.) The petitioner and S.P. went to the

seashore, waterfalls, the woods, playgrounds and historic sites together, and played at home

together. (Tr. 22:20-23:2, 23:18-23.) The respondent testified that he provided S.P. with

“everything he needed” in Israel; S.P. attended a prestigious school and had many relatives in

Israel. (Tr. 83:4-84:21.)

Before July of 2019, the respondent took S.P. to the United States three times during

holidays. (Ex. 22 ¶ 16; Tr. 24:11-25:13, 86:19-87:2.) Each trip lasted two to three weeks, and

S.P. did not miss any school. (Ex. 22 ¶ 16; Tr. 25:14-17.) The first trip was in November of

2015, and the last was in the summer of 2018. (Ex. 22 ¶ 16; Tr. 25:6-13.) Before each trip, the

petitioner and the respondent “discussed the approximate length” of the trip, but decided on the

return date after the respondent and S.P. got to the United States, so that they could maintain

flexibility and take advantage of cost-efficient flights. (Ex. 22 ¶ 17.) The petitioner spoke with

S.P. every day during these trips. (Id. ¶ 18.)

3. July 2019 Departure to the United States

On July 19, 2019, the respondent left Israel for New York with S.P. (Ex. 22 ¶ 24.) The

petitioner and the respondent gave somewhat different accounts of the events that led up to the

departure.

The parties agree that the respondent began pursuing permanent residency in the United

States sometime in 2016, and traveled regularly between Israel and the United States to file

paperwork related to his immigration petition. (Id. ¶¶ 19, 20.) There is also no dispute that the

respondent decided to take S.P. on a trip to the United States in July of 2019, and that the

petitioner knew about the trip. (Id. ¶¶ 22-24.) The parties dispute, however, whether the

petitioner agreed that S.P. would move to the United States permanently.

According to the respondent, the petitioner agreed S.P. could move with him to the

United States. (Tr. 104:18-22.) He testified that he had thought about moving to the United

States since he married his wife in 2016, and he made the decision to move in 2017, the year that

his mother passed away. (Tr. 84:22-86:7.) He said that he discussed these plans to move with

the petitioner, who was “happy” because she believed that she and S.P. would be able to get

green cards. (Tr. 87:16-88:5, 98:25-99:3.) He also claimed that he spoke about his plans in the

petitioner’s presence, in conversations with the managing partner of his business, Karen

Pagosov, and a photographer with whom he worked, Gregory Lifshits, and that the petitioner

“never objected” to the respondent’s plans. (Tr. 87:16-90:19.)

The declarations of Mr. Pagosov and Mr. Lifshits are part of the record. (See Tr. 158:6-

19.)2 In his declaration, Mr. Pagosov recounted a conversation in July of 2019, “on the eve of

[the respondent’s] trip to the USA,” in which the respondent “mentioned” to the petitioner that

the trip to the United States “was a long-term trip to receive a green card,” and that the petitioner

“was pleased with the idea.” (ECF No. 13.) Mr. Lifshits states in his declaration that on May

10, 2019, he, the respondent and the petitioner discussed the respondent’s “plans to move to New

York with their son and remain there indefinitely.” (ECF No. 15.) The petitioner “expressed her

happiness with that arrangement,” and said, “First you get your green cards, and then you’ll use

that to bring me to the United States[,] too.” (Id.)

The petitioner, on the other hand, denies that she agreed to S.P.’s permanent relocation to

the United States, and that she agreed only that the respondent could take S.P. on a trip, as he had

on other occasions. She testified that she and the respondent discussed a July 2019 trip some

time in May of 2019. (Tr. 25:18-22.) According to her, the respondent said that he would take

S.P. to the United States “as usual as he did it before,” and that he wanted S.P. to spend time in

the United States for the summer holidays. (Tr. 25:23-26:4.) She asked the respondent to bring

S.P. back at the end of August, or September 1st at the latest so that he would not miss the

beginning of school. (Tr. 26:10-15.) On the morning of July 19, 2019, the respondent brought

S.P. to the petitioner so she could say goodbye and wish him a good trip—the “usual procedure”

they followed when the respondent took S.P. on a trip. (Tr. 26:22-27:9.)3

2 In a declaration that is also part of the record, the respondent’s friend, Michael Braverman, claims that

the petitioner asked questions about the United States, and told him about the respondent’s statement that

“there was nothing holding him back in Israel” since his mother passed away. (ECF No. 19.)

3 There is no writing memorializing any agreement that the respondent could take S.P. to the United

States permanently. (Tr. 103:7-104:4.)

In resolving the parties’ conflicting accounts, I generally credit both parties’ testimony. I

find, however, that the petitioner’s testimony, particularly on the subject of her understanding of

the nature of the July 2019 trip, was more credible, and was corroborated by other evidence,

including the respondent’s own words and actions. While there is some evidence that accords

with the respondent’s account, the weight of the persuasive evidence is on the petitioner’s side.

4. S.P.’s Time in the United States

The petitioner testified that she talked with S.P. on the phone regularly after he arrived in

the United States, and asked for photographs of the places he visited. (Tr. 27:16-20, 32:10-15.)

In mid-August of 2019, she asked the respondent when he was planning to bring S.P. back to

Israel. (Tr. 27:20-22; Ex. 1 at 2.) The respondent answered, “I don’t know yet, we’re still here.”

(Tr. 27:23-28:1.) On about August 20, 2019, the respondent told the petitioner that he did not

“have an answer yet,” but that they would “most likely” stay in the United States until the end of

September. (Tr. 29:8-15.) When the petitioner said that S.P. had to start school, the respondent

replied that he wanted to enroll S.P. in school in the United States “for about a month.” (Tr.

29:15-18.) The petitioner told the respondent that she was not happy with that answer. (Tr.

29:18-21; see also Ex. 1 at 2 (In a WhatsApp conversation on August 26, 2019, the petitioner

asked the respondent about “the documents” and when they would be coming home; the

respondent said, “I am working on resolving the issues. We’re here for now. . . . I’ve not heard

yet.” The petitioner told the respondent that she was not happy that S.P. would be going to

school in the United States for a month.).) The petitioner testified that she was “vexed” at the

respondent because they had talked about him bringing S.P. back by September 1st. (Tr. 44:24-

45:1.)

On August 27, 2019, the respondent sent a letter to S.P.’s school in Israel in which he

stated, “[S.P.] is with me in the USA. We are supposed to come back to Israel in October, after

the holidays. I ask that you reserve a spot for him in the class. Thank you for understanding.”

(Ex. 5.) The director of S.P.’s school sent the petitioner a copy of the letter. (Ex. 4; Tr. 35:10-

25.)

In September of 2019, the respondent asked the petitioner to send him documents for a

visa application, a request she “didn’t really understand” because they were planning to return in

September, and because she would not have been able to return to Israel had she left. (Tr. 45:20-

46:8.) At the end of September, she asked the respondent again when they planned to return; he

answered that he would “know better by mid-October,” after the Jewish holiday Sukkot. (Tr.

29:22-30:3.)

She asked him about the return plans in an October 3, 2019 exchange over WhatsApp

(Ex. 1 at 4-5), and again in a telephone conversation, in which the respondent said, “I don’t know

yet” (Ex. 21 at 1; Tr. 42:1-10). In the telephone conversation, the respondent suggested that the

petitioner come to the United States, but did not give the petitioner a direct answer about their

return plans. (Ex. 21.)

“[A]fter numerous promises that they would return soon,” the petitioner realized that the

respondent did not plan to bring S.P. back to Israel. She “didn’t really know what to do,” so she

consulted the administrators at S.P.’s school, and met with the director and school psychologist

on about October 22, 2019. (Tr. 30:4-15.) The petitioner asked if they had “heard anything

about when Mr. Shvartsman would return;” the school director told the petitioner that the

respondent had told her the same story that he told the petitioner—that they would return after

the holidays. (Tr. 30:15-18.)

On October 22, 2019, the respondent wrote a letter to S.P.’s school in Israel, stating: “I

wish to inform you that [S.P.] is registered for school in New York. The estimated date of his

return to Israel is currently unknown. I will inform you immediately when I find out. I will

appreciate your understanding.” (Ex. 9.)

The petitioner continued to ask the respondent about their plans to return, and demanded

that he bring S.P. back to Israel. (See Ex. 1 at 5-8 (the petitioner asked the respondent about

their return on October 30, November 2 and 16, and December 29 via WhatsApp); Tr. 47:9-13

(“I asked him that question all the time.”).) When the petitioner asked him on November 16,

2019, the respondent said, “I received an official letter that they must give an answer within 60

days.” (Ex. 1 at 5.)

The petitioner talked with S.P. by telephone every day from July to November of 2019.

(Tr. 32:10-15.) In November, however, S.P. became impatient and angry with her. (Tr. 32:16-

17.) Sometimes he “went back to his normal way” and they would talk for hours; other times he

was angry and said “bad things,” which made the petitioner believe that he was “out of balance.”

(Tr. 32:16-33:8.)

The respondent filed a petition to obtain a green card for S.P. in the United States. (Tr.

90:20-91:1; Ex. G.) He “believe[s] it was mentioned” to the petitioner that he filed an

application for S.P. to obtain permanent residence status in the United States. (Tr. 98:19-99:5.)

The respondent also filed a petition in the Queens County Family Court, seeking sole

custody of S.P. (Ex. 22 ¶ 27.) The petitioner received the petition in early March of 2020. (Id.)

The family court proceedings have been stayed pending the resolution of this case. (See id.)

S.P. has not returned to Israel and is currently living in Queens, New York with the

respondent. (Id. ¶¶ 3, 26-27.) The respondent testified that S.P. is “happy” in the United States;

he lives a “healthy lifestyle,” “attends his school with great pleasure,” and is among family,

including the respondent, the respondent’s wife, and S.P.’s half-sister and stepsisters. (Tr. 96:25-

98:6.)

5. The Petitioner’s Status in Israel

The petitioner moved to Israel in 2014 but has not obtained Israeli citizenship. (Ex. 22 ¶

1; Tr. 20:24-25, 34:19-24.) She applied for a humanitarian visa based on the unstable political

situation in Ukraine and her integration in Israel. (Tr. 34:22-24, 70:16-18, 72:20-25.) The Israeli

government has not taken any steps to deport her. (Tr. 34:25-35:3.)

6. Expert Testimony and Submissions

Dr. Vera Kishinevsky, a psychologist who started treating S.P. in November of 2019, and

who prepared a report in connection with this case, testified for the respondent. The petitioner

called Dr. Alberto Yohananoff as a rebuttal witness.

Dr. Kishinevsky worked for the Board of Education of the City of New York for

approximately 31 years, and has been in private practice treating families since 2002. (Tr. 107:8-

11; Ex. F (amended Jan. 24, 2021).) She testified that the respondent brought S.P. to see her in

November of 2019 “because the child needed significant help;” he had difficulty sleeping and

was in a “sad state of mind.” (Tr. 111:2-7.) Dr. Kishinevsky “worked with him and with his

father in order to provide care” and a “better supportive system.” (Tr. 111:10-12.) She has done

individual and family therapy with S.P. and the respondent from November of 2019 until the

present. (Tr. 126:6-127:7.)

Dr. Kishinevsky testified that S.P. talked at the initial visit about “his difficulty handling

his mother’s pressure and his desire to stay with his father.” (Tr. 112:5-12.) Dr. Kishinevsky

observed that S.P. “looked extremely stressed when he spoke about his mother because he felt

guilty;” he spoke about “painful experiences” involving his mother, “had difficulty explaining

what was going on,” and cried. (Tr. 113:2-16.) When he spoke about his father, however, “he

spoke about good things they did together,” and was enjoying his “normal life” with his father.

(Tr. 113:17-114:14.) S.P. has “started developing better coping skills.” (Tr. 112:13-16.) Dr.

Kishinevsky testified that it was “unfair for the child” to be in the “battleground,” and to be “put

in the situation when he has to make choices that are not age appropriate.” (Tr. 114:15-22.)

She also opined that it would be “devastating” for S.P. to be “pulled away from the

family unit that he’s living with here” because “he does not have a say when it comes to his

mother;” he would “feel depersonalized” and “out of control.” (Tr. 117:19-119:20; see also Ex.

F (“If [S.P.] is returned to his mother, [he] may suffer from emotional and behavioral stressors

that are beyond his coping skills and may cause him significant mental health problems.”).)

Staying in the United States would be a “positive experience” because he would be “living with

two parents [and] siblings,” have a “normal life” with his father who “addresses his needs,” and

be able to develop his “sense of self.” (Tr. 119:21-120:9.) Dr. Kishinevsky did not express an

opinion about whether S.P. should live with his father in Israel or the United States because it

“[d]oesn’t matter to [her].” (Tr. 138:4-13.)

According to the model standards promulgated by the Association of Family and

Conciliation Courts, an evaluator in a child custody dispute should use diverse data-gathering

methods and a “balanced process;” an evaluator’s pre-existing relationship with a child or a

parent can affect the evaluator’s objectivity. (Tr. 128:25-129:15, 131:23-134:19.) Dr.

Kishinevsky did not follow those standards in this case because she was giving her “clinical

opinion,” and “did not believe it was necessary.” (Tr. 127:18-129:15.) Her “work with the child

was to help him relieve his stress, help him develop better coping skills, [and] strengthen his

father’s parenting skills;” she was “not hired to participate in the Court” proceedings, and “was

not part of the child custody dispute.” (Tr. 130:25-131:5, 134:12-19.) Her “observations were

done in a therapeutic mode, not the legal mode.” (Tr. 140:2-5.) She acknowledged that she did

not consider potential biases or alternative hypotheses, and that her only sources of information

were her therapy sessions with S.P. and his family. (Tr. 127:14-17, 129:16-19, 136:2-137:2.)

She did not try to get any information from the petitioner, or ask to interview her. (Tr. 130:15-

20, 133:2-10.)

Dr. Alberto Yohananoff, a psychologist with approximately 28 years of experience,

including forensic evaluations in custody cases, reviewed Dr. Kishinevsky’s report. (Ex. 23; Tr.

144:24-145:3.) Dr. Yohananoff explained that “the whole idea of forensic evaluation” is for the

evaluator to be “dispassionate, impartial, [and] objective,” which is difficult if the evaluator is

also the subject’s therapist. (Tr. 146:6-21.) In custody evaluations, “the given is that the parties

present with competing narratives,” and the job of a forensic evaluator is to “mesh competing

narratives.” (Tr. 147:8-9, 13-19.) He testified that evaluators in child custody matters should

follow the Association of Family and Conciliation Courts’ model standards because child

custody evaluations are difficult and involve “parties with competing narratives;” the model

standards ensure—as much as possible—the reliability of evaluators’ conclusion. (Tr. 144:1-15.)

Under those standards, an evaluator should not function as both a therapist and a forensic

evaluator—a “dual role”—because it might affect her objectivity. (Tr. 145:19-146:9.) In Dr.

Yohananoff’s view, Dr. Kishinevsky’s report is not reliable because she “did not follow” the

model standards; she adopted the point of view of the respondent, his wife and S.P., “without any

deeper investigation to complete her analysis, to complete her processes.” (Tr. 145:4-13.) Dr.

Kishinevsky’s report includes only one perspective; there is “no testing” of the mother’s

perspective, and “it is difficult to assume that what you’ve been told is accurate because the party

has an agenda.” (Tr. 148:2-6.)

Dr. Yohananoff opined that Dr. Kishinevsky should have considered “parental

alienation,” where a child in a high-conflict situation “might decide, not consciously, of course,

but over time to align himself or herself with one of the parties, which is the favorable party, and

completely reject the other party.” (Tr. 148:7-25.) Dr. Yohananoff believed that there were

“distinct suggestions” that “parental alienation might be at play” in this case: S.P.’s inability to

recall positive memories about his mother, his adoption of a “perspective that is consistent with

that of the father,” and his “black-and-white picture of the parents.” (Tr. 149:1-16.) Dr.

Yohananoff suggested that if there is parental alienation, it might not be in the child’s best

interest to continue living with his father because it “essentially would ensure that the mother

will be completely cut off from the relationship.” (Tr. 149:16-150:2.) Dr. Kishinevsky did not

explore that possibility. (Tr. 149:15-16.)

As Dr. Yohananoff explained, because “any forensic report, no matter how good it is,

will have limitations,” the model standards suggest that evaluators recognize that their reports

have limitations, so that the reader will be aware of the limitations. (Tr. 150:3-11.) An “obvious

limitation” in Dr. Kishinevsky’s report is the absence of “alternative hypothes[e]s;” Dr.

Kishinevsky “did not consider the possibility of parent alienation,” and did not speak to S.P.’s

mother. (Tr. 150:3-16.) In Dr. Yohananoff’s opinion, these limitations are “severe,” and “the

report is very flawed.” (Tr. 150:17-25.)

Dr. Yohananoff’s testimony was objective and credible. Although Dr. Kishinevsky is an

experienced therapist, neither her testimony nor her report supports the respondent’s claim that

S.P. would be subject to a grave risk of harm if he were returned to Israel. As she conceded, she

was not acting as an objective evaluator, but as a therapist for S.P. and the respondent’s family.

She relied only on information from S.P. and the respondent. She did not interview or consider

the perspective of the petitioner, and did not consider any potential biases or alternative

hypotheses for her conclusions.

7. Proceedings in Israel

In May of 2020, the petitioner filed an Article 15 petition in the Kiryat Shmona Family

Court in Israel seeking declaratory relief. (See Ex. 17 (ECF No. 24-1) at 2.) The Israeli Court

held a hearing on July 12, 2020, in which the petitioner, petitioner’s counsel and respondent’s

counsel participated. (Id.)

On August 25, 2020, the Israeli court issued a decision, concluding that the respondent

wrongfully removed S.P. from Israel in violation of the petitioner’s custody rights. (Id. at 15.)

The parties did not dispute that S.P.’s habitual residence was Israel; the court noted that “it

cannot be disputed that the [child’s] habitual place of residence, within the meaning of the phrase

under the Convention, was in Israel.” (Id. at 9-10.) On the issue of consent, the court found that

“even if the mother agreed to [S.P.’s] lengthy travel, it was not proved to me that she gave her

consent to his emigration to the United States, all the more, where she herself cannot leave Israel

and visit him as much as she desires.” (Id. at 10.) The court concluded that the respondent’s

removal of S.P. violated the petitioner’s “basic custody rights” because it deprived her of the

“right to participate in the education, upbringing and development of her son,” and caused

“harm” to S.P.’s “right to be raised and educated by both his parents.” (Id. at 15.)

The court explained that ”[t]he practice set forth in section 15 is intended to enable the

authorities of the State in which the proceedings are conducted in the minor’s case to apply to the

authorities in the State of the minor’s habitual residence in order to clarify the relevant law

through them and to assist them in deciding whether the minor was unlawfully removed;” the

Israeli court was “not required to decide on the issue of returning [S.P.], as the proceeding of

returning [S.P.] under the Hague Convention was initiated by the [petitioner] in the state of New

York.” (Id. at 6-8.)

CONCLUSIONS OF LAW

The Hague Convention, to which the United States and Israel are signatories, is meant to

address “the problem of international child abductions during domestic disputes.” Abbott v.

Abbott, 560 U.S. 1, 8 (2010); see also Gitter v. Gitter, 396 F.3d 124, 129-30 (2d Cir. 2005). The

Convention’s purpose is “to secure the prompt return of children wrongfully removed to or

retained in any contracting state,” and “to ensure that rights of custody and of access under the

law of one Contracting State are effectively respected in the other Contracting States.” Hague

Convention, art. 1. The Convention is “especially aimed at the unilateral removal or retention of

children by those close to them, such as parents, guardians, or family members.” Gitter, 396

F.3d at 129. The Convention prevents parties from removing or retaining a child in a jurisdiction

“more favorable to their custody claims in order to obtain a right of custody from the authorities

of the country to which the child has been taken.” Id. (citation and quotation marks omitted).

A decision under the Hague Convention “shall not be taken to be a determination on the

merits of any custody issue.” Hague Convention, art. 19. “The Convention’s focus is simply

upon whether a child should be returned to her country of habitual residence for custody

proceedings.” Mota v. Castillo, 692 F.3d 108, 112 (2d Cir. 2012).

A petitioner bringing a Hague Convention action for the wrongful retention of a child

must show that (1) the child was “habitually resident” in one contracting state and was retained

in another contracting state; (2) the retention breached the petitioner’s custody rights under the

law of the contracting state of habitual residence; and (3) the petitioner was exercising those

rights at the time of retention or would have been exercising those rights but for the retention.

Gitter, 396 F.3d at 130-31; see Hague Convention, art. 3. The petitioner must prove these

elements by a preponderance of the evidence. Gitter, 396 F.3d at 131; 22 U.S.C. §

9003(e)(1)(A).

Even when a petitioner establishes a prima facie claim under the Hague Convention,

“[r]eturn is not required if the abducting parent can establish that a Convention exception

applies.” Abbott, 560 U.S. at 22; see also 22 U.S.C. § 9001(a)(4). Two defenses are of

particular relevance to this case: (1) the defense of consent or acquiescence; and (2) the defense

of grave risk of harm. See Hague Convention, art. 13. A respondent must establish the consent

or acquiescence defense by a preponderance of the evidence, and the grave risk defense by clear

and convincing evidence. Id.; 22 U.S.C. § 9003(e)(2). The Second Circuit has cautioned that the

defenses listed in the Convention should be applied “narrowly,” and even where an exception

has been established, the district court may still order the child’s return. Souratgar v. Lee, 720

F.3d 96, 103 (2d Cir. 2013).

I. Habitual Residence

The parties dispute only one element of the petitioner’s prima facie case: whether Israel

is S.P.’s habitual residence. (See ECF No. 50 at 5; ECF No. 51 at 2; Ex. 22 ¶ 12 (the parties

agree that they “did not have a formal custody agreement,” and had an “informal agreement

pursuant to which both exercised shared custody over S.P.”).) The petitioner claims that S.P.’s

habitual residence is Israel, while the respondent claims that it is the United States. (See ECF

No. 50 at 19-23; ECF No. 51 at 14-20.)

The Convention does not define “habitually resident,” but courts have provided guidance

on the habitual residence inquiry. See, e.g., Monasky v. Taglieri, 140 S. Ct. 719, 726-29 (2020);

Grano v. Martin, 821 F. App’x 26, 27-28 (2d Cir. 2020) (summary order). As the Supreme

Court explained in Monasky, “a child’s habitual residence depends on the totality of the

circumstances specific to the case.” 140 S. Ct. at 723. Because the inquiry is “fact-driven,”

“courts must be sensitive to the unique circumstances of the case and informed by common

sense.” Id. at 727 (citation and quotation marks omitted). “Some factors for courts to consider

in determining ‘habitual residence’ include where a child has lived, the length of time there,

acclimatization, and the ‘purposes and intentions of the parents.’” Grano, 821 F. App’x at 27

(quoting Monasky, 140 S. Ct. at 728).

Habitual residence is determined as of the time of removal or retention. “The place

where a child is at home, at the time of removal or retention, ranks as the child’s habitual

residence.” Monasky, 140 S. Ct. at 726; see also Hague Convention, art. 3 (the wrongful

removal inquiry concerns custody rights under “the law of the State in which the child was

habitually resident immediately before the removal or retention”).

The parties agree that S.P. “lived continuously in Israel” from the spring of 2014 until the

respondent “brought him to the United States on July 19, 2019” (Ex. 22 ¶ 9)—in other words,

that he was habitually resident in Israel at the time the respondent brought him to the United

States. Citing Monasky, the respondent argues that S.P. is now habitually resident in the United

States, essentially taking the position that S.P.’s residence is wherever his father is; the

respondent says that S.P. now has meaningful connections with family and friends here, and also

cites S.P.’s previous trips to the United States and his pending green card application. (ECF No.

51 at 14-20.)4 While the respondent is correct that Monasky requires a consideration of the

particular circumstances of each case, he overlooks the Supreme Court’s very clear statement

about the time by which habitual residence is determined, which is “at the time of removal or

retention,” not after the child has been removed or retained. 140 S. Ct. at 726. That directive is

consistent with the text of the Convention, which provides that removal or retention is wrongful

if it is in breach of custody rights “under the law of the State in which the child was habitually

resident immediately before the removal or retention.” Hague Convention, art. 3. The

respondent’s contrary interpretation, aside from being flatly contradicted by the Convention’s

language, would undermine the Convention by permitting the abducting parent simply to claim

that the child’s home is wherever the parent is.5

The petitioner has demonstrated by a preponderance of the evidence that S.P.’s habitual

residence is Israel. As the respondent concedes, S.P. “lived continuously in Israel” from 2014

until the respondent “brought him to the United States on July 19, 2019.” (Ex. 22 ¶ 9.) S.P.

“was surrounded by friends and loved ones,” and lived a “vibrant and fulfilling” life. (Id. ¶¶ 14-

15; Tr. 21:4-23:2, 23:18-23, 83:4-84:21.) See Lukic v. Elezovic, No. 20-CV-3110, 2021 WL

466029, at *5 (E.D.N.Y. Feb. 9, 2021) (“[I]t is undisputed that [the child] resided in Montenegro

her entire life, up to the point when respondent took her to the United States more than eighteen

months ago. . . . Thus, ‘[c]ommon sense suggests’ that Montenegro is her habitual residence.”)

(quoting Monasky, 140 S. Ct. at 727).

4 As part of his discussion about habitual residence, the respondent argues that the petitioner consented to

a permanent move. As discussed in Section II, a preponderance of the evidence does not support that

position.

5 The respondent is not invoking the Convention’s “well settled” defense, which an abducting parent can

claim if a petitioner commences proceedings more than one year after the date of the wrongful removal or

retention, and the child is “settled” in the new environment. Hague Convention, art. 12. The petitioner

commenced proceedings within a year of the wrongful retention, so the defense does not apply.

Moreover, the respondent’s previous trips to the United States with S.P. did not change

S.P.’s residence. It would defy common sense—and contradict the parties’ stipulation that S.P.

lived in Israel continuously until July 19, 2019—to conclude that S.P. was at home in the United

States because he took vacations to various cities in the United States. Nor does S.P.’s pending

green card application tip the balance in the respondent’s favor. The “common sense”

conclusion is that S.P.’s habitual residence is Israel. Monasky, 140 S. Ct. at 727.

This conclusion accords with the decision issued by the Kiryat Shmona Family Court in

Israel, in which the Israeli court concluded that S.P. was “unlawfully removed from Israel” and

noted that “it cannot be disputed that the [child’s] habitual place of residence, within the meaning

of the phrase under the Convention, was in Israel.” (Ex. 17 at 1, 9-10, 15 (quotation marks

omitted).)6

6 On October 27, 2020, I granted in part and denied in part the petitioner’s motion for judicial notice and

extension of comity to the Israeli court’s decision. I took judicial notice of the decision in making my

determination as to whether removal was wrongful within the meaning of the Convention. In her post

trial brief, the petitioner renews her request that the Court find the respondent barred from “re-litigating”

the merits of the prima facie case in light of the Israeli court’s decision. (ECF No. 50 at 18-19.)

Although “the exercise of comity . . . is at the heart of the Convention,” Blondin v. Dubois, 189 F.3d 240,

248 (2d Cir. 1999), the Court is not required to adopt wholesale another court’s findings issued pursuant

to Article 15. As the Israeli court noted, the petitioner filed her Article 3 petition in this court. Moreover,

neither the Court nor the United States Department of State requested Article 15 materials. See Pignoloni

v. Gallagher, No. 12-CV-3305, 2012 WL 5904440, at *45 n.45 (E.D.N.Y. Nov. 25, 2012) (“The court

notes that, as previously determined at trial, the Central Authority’s letter, although admitted into

evidence, does not constitute an Article 15 letter under the Hague Convention because neither the court

nor the United States Department of State requested Petitioner to obtain this ruling from the Central

Authority. Moreover, even if the letter were an Article 15 determination, the court could take notice of,

but is not bound by that determination.”) (citing Norden-Powers v. Beveridge, 125 F. Supp. 2d 634, 635

n.1 (E.D.N.Y. 2000) (the court “may under Article 15 take notice of . . . decisions” made by the

Australian family court)), aff’d, 555 F. App’x 112 (2d Cir. 2014); Whallon v. Lynn, 230 F.3d 450, 457 n.8

(1st Cir. 2000) (assigning a letter from the Mexican Central Authority for Child Abduction to the National

Center for Missing and Exploited Children, issued pursuant to Article 15, “little weight”). The Israeli

court acknowledged the limited purpose of its decision pursuant to Article 15. See Ex. 17 at 7-8 (“The

practice set forth in section 15 is intended to enable the authorities of the State in which the proceedings

are conducted in the minor’s case to apply to the authorities in the State of the minor’s habitual residence

in order to clarify the relevant law through them and to assist them in deciding whether the minor was

unlawfully removed.”). In any case, whether I deem the petitioner’s habitual residence argument barred

by the Israeli court’s decision or not is purely a technical matter, as I reach the same conclusion as the

Israeli court.

II. Consent or Acquiescence

A respondent raising the consent or acquiescence exception must show by a

preponderance of the evidence that the petitioner “consented to or subsequently acquiesced in the

removal or retention.” Hague Convention, art. 13(a); 22 U.S.C. § 9003(e)(2)(B). The “key” to

the consent analysis is “the petitioner’s subjective intent,” and the inquiry “includes the nature

and scope of the alleged consent.” Nissim v. Kirsh, 394 F. Supp. 3d 386, 398 (S.D.N.Y. 2019)

(citation and quotation marks omitted). “When considering whether the petitioner consented to

the removal, ‘it is important to consider what the petitioner actually contemplated and agreed to

in allowing the child to travel outside its home country.’” Chumachenko on Behalf of P.B. v.

Belan, No. 18-CV-9728, 2018 WL 6437062, at *8 (S.D.N.Y. Dec. 7, 2018) (quoting Baxter v.

Baxter, 423 F.3d 363, 371 (3d Cir.2005)); see also Hofmann v. Sender, 716 F.3d 282, 294-95 (2d

Cir. 2013) (“Article 13(a) does not provide that if a parent consents to removal of the child for a

period, under certain conditions or circumstances, that retention of the child beyond those

conditions or circumstances is necessarily permissible.”) (quoting Baxter, 423 F.3d at 370)

(internal quotation marks omitted).

The acquiescence defense—“analytically distinct” from the consent defense because it

“addresses whether the petitioner subsequently agreed to or accepted the removal or retention”—

“requires a higher degree of formality” such as “a formal statement” or a “consistent attitude of

acquiescence over a significant period of time.” Kosewski v. Michalowska, No. 15-CV-928,

2015 WL 5999389, at *15 (E.D.N.Y. Oct. 14, 2015) (citations and quotation marks omitted).

The respondent claims that the petitioner consented to S.P.’s permanent move to the

United States; the petitioner maintains that she did not. (See ECF No. 50 at 23-27; ECF No. 51

at 17-18.) The respondent has not met his burden.

The respondent testified about his plan to move to the United States. (See Tr. 84:22-86:7,

87:16-90:19, 98:25-99:3.) Although he claimed that the petitioner agreed to let him take S.P. to

the United States permanently (Tr. 104:18-22), he did not testify that the petitioner agreed or

knew that the July 2019 trip was to be a permanent move.7 The respondent offered some

evidence—the declarations of Gregory Lifshits and Karen Pagosov—suggesting that the

petitioner knew that the July 2019 trip was a permanent move. In his declaration, Gregory

Lifshits stated that two months before the respondent took S.P. to the United States, he, the

respondent and the petitioner discussed the respondent’s “plans to move to New York with their

son and remain there indefinitely.” (ECF No. 15.) Karen Pagosov stated in his declaration that

the night before the respondent’s departure, the petitioner was pleased with the prospect of

getting a green card; he did not describe the visit as a permanent move, but as a “long-term trip.”

(ECF No. 13.) In my view, the declarations are not compelling proof that the petitioner knew

that the respondent was taking S.P. to the United States for good.

The evidence supporting the petitioner’s version was far stronger, consisting not only of

her testimony, but of contemporaneous messages between her and the respondent, and the

respondent’s own words and actions. The petitioner testified in detail about the respondent’s

plans and her expectations about the trip, including the agreement that the respondent would

bring S.P. back to Israel by September 1, 2019 for school. (See Tr. 25:18-26:4, 26:10-15; see

also Tr. 29:8-21, 44:24-45:1 (the petitioner was “vexed” when the respondent told her they

would be staying in the United States for an extra month because this did not accord with the

plan that the respondent bring S.P. back by September 1st).) Significant non-testimonial

evidence supports the petitioner’s account that she did not agree to a permanent move. The

7 The respondent testified that he decided to move in 2017 (Tr. 86:4-7), but he took S.P. to the United

States in 2018, a year before the July 2019 trip (see Tr. 25:6-13).

petitioner’s correspondence with the respondent shows that she asked him multiple times when

he was bringing S.P. back: on August 26, October 3, October 30, November 2, November 16,

and December 29 via WhatsApp, and in October via telephone. (Ex. 1 at 2, 4-8; Ex. 21 at 1.)

The repeated inquiries are not consistent with consent to a permanent move.

The respondent’s words and actions also belie his claim. Although during a telephone

conversation months after his departure from Israel he discussed the possibility of the petitioner

coming to the United States—suggesting that they would all stay in the United States—not once

in five months did he explicitly say that S.P.’s move was permanent. (See Ex. 1 at 2-7

(WhatsApp exchanges from August to December of 2019); Ex 21.) On the contrary, he

repeatedly assured the petitioner that he was bringing S.P. back to Israel. (See Ex. 1 at 2 (In a

WhatsApp conversation on August 26, 2019, the petitioner asked the respondent about “the

documents” and when they would be coming home; the respondent said, “I am working on

resolving the issues. We’re here for now. . . . I’ve not heard yet.”); Ex. 21 at 1 (The petitioner

asked him, during a telephone conversation, when they would return; the respondent said that he

did not know “yet”); Ex. 1 at 5 (The petitioner asked the respondent over WhatsApp when he

would bring S.P. home on November 16, 2019, and the respondent said, “I received an official

letter that they must give an answer within 60 days.”).) These exchanges suggest either that the

respondent was simply stringing the petitioner along, or that he had not yet made up his own

mind. They do not support his claim that she consented to the permanent relocation of her child.

Moreover, the respondent did not make these representations only to the petitioner. He

told officials at S.P.’s school in Israel that he planned to bring S.P. back to Israel in October, and

asked them to hold a place for him. In an August 2019 letter, he wrote, “[S.P.] is with me in the

USA. We are supposed to come back to Israel in October, after the holidays. I ask that you

reserve a spot for him in the class. Thank you for understanding.” (Ex. 5.)

Accordingly, the respondent has not shown by a preponderance of the evidence that the

petitioner consented to his permanent removal of S.P. to the United States in July of 2019.8 See

Hofmann, 716 F.3d at 294-95 (consent to removal “for a period” does not make retention

“beyond those conditions” permissible). Nor has he shown that the petitioner subsequently

acquiesced to the move. There is no “formal statement” of the petitioner’s agreement nor is

there a “consistent attitude of acquiescence over a significant period of time” following S.P.’s

departure. See Kosewski, 2015 WL 5999389, at *15. On the contrary, the persuasive evidence—

the petitioner’s repeated requests that the respondent return S.P. to Israel, and the respondent’s

own statements to the petitioner and to S.P.’s school—shows that there was neither consent nor

acquiescence.

III. Grave Risk of Harm

A respondent raising the defense of grave risk of harm must show by clear and

convincing evidence that “there is a grave risk that [the child’s] return would expose the child to

physical or psychological harm or otherwise place the child in an intolerable situation.” Hague

Convention, art. 13(b); 22 U.S.C. § 9003(e)(2)(A). For the exception to apply, “[t]he potential

harm to the child must be severe, and the level of risk and danger required to trigger this

exception has consistently been held to be very high. The grave risk involves not only the

magnitude of the potential harm but also the probability that the harm will materialize.”

Souratgar, 720 F.3d at 103 (citations, quotation marks and alterations omitted). Courts must

8 The Kiryat Shmona Family Court judge reached the same conclusion. (See Ex. 17 at 10 (“[E]ven if the

mother agreed to [S.P.’s] lengthy travel, it was not proved to me that she gave her consent to his

emigration to the United States, all the more, where she herself cannot leave Israel and visit him as much

as she desires.”).)

interpret the exception “narrowly, lest it swallow the rule.” Id. (citations and quotation marks

omitted).

The respondent cites two bases for a grave risk determination: (1) that S.P. will

experience psychological harm if he is separated from his father; and (2) that S.P. will be

deported to Ukraine or become a ward of the State of Israel if the petitioner is deported to

Ukraine. (See ECF No. 51 at 21-23.) The respondent did not show by clear and convincing

evidence that S.P. will experience a grave risk of harm if returned to Israel under either theory.

a. Separation from the Respondent

To support his claim of grave risk, the respondent relies on Dr. Kishinevsky, who

testified that returning S.P. to his mother would be “devastating” because “he does not have a say

when it comes to his mother;” he would “feel depersonalized” and “out of control.” (Tr. 117:19-

119:20; see also Ex. F (“If [S.P.] is returned to his mother, [he] may suffer from emotional and

behavioral stressors that are beyond his coping skills and may cause him significant mental

health problems.”).) As explained above, Dr. Kishinevsky’s opinion is not reliable; as she

conceded, she was not testifying as an objective forensic expert, but as a treating therapist. She

based her opinion on her interactions with S.P., the respondent, and the respondent’s family. She

did not interview the petitioner, or seek any objective information about her, and did not consider

any potential biases or alternative hypotheses for her conclusions. (See Tr. 127:14-17, 129:16-

19, 130:15-131:5, 133:2-10, 134:12-19, 136:2-137:2, 140:2-5.) Nor did she address the

undisputed evidence that S.P.’s life in Israel was “vibrant and fulfilling.” (See Ex. 22 ¶ 14); see

Application of Blondin v. Dubois, 78 F. Supp. 2d 283, 297 (S.D.N.Y. 2000) (distinguishing the

circumstances before the court—the children would be “returned to the country where they were

severely abused, physically and emotionally, by their father for an extended period of time”—

from cases in which courts declined to apply the grave risk exception even though separation

from a parent would cause “psychological harm”) (collecting cases), aff’d sub nom. Blondin v.

Dubois, 238 F.3d 153 (2d Cir. 2001).

In any event, the respondent’s grave risk argument rests on a faulty premise: that ordering

S.P.’s return to Israel requires that he be separated from the respondent. There is no evidence

that the respondent could not travel to Israel with S.P., or that returning S.P. to Israel would

interfere with the respondent’s custody rights. See Abbott, 560 U.S. at 9 (“A return remedy does

not alter the preabduction allocation of custody rights but leaves custodial decisions to the courts

of the country of habitual residence.”). Of course, the respondent may choose to stay in the

United States, but that choice would not establish grave risk.9 See In re Koc, 181 F. Supp. 2d

136, 156 (E.D.N.Y. 2001) (“[T]o the extent that respondent asserts that an order of this Court

returning [the child] to Poland would cause [the child] ‘grave harm’ because she would be

denied ‘the benefit of motherly love,’ . . . respondent ignores the fact that this is a consequence

of choices made by respondent and not one that this Court may consider in determining the

questions presented here.”), report and recommendation adopted (Apr. 3, 2001); Valles Rubio v.

Veintimilla Castro, No. 19-CV-2524, 2019 WL 5189011, at *31 (E.D.N.Y. Oct. 15, 2019) (“It

would defy the policy undergirding the Convention if a respondent could avoid a custody dispute

in the state of habitual residence by refusing to return, and thus prevail by default by defeating a

petition for return.”), aff’d, 813 F. App’x 619 (2d Cir. 2020); Wtulich v. Filipkowska, No. 16-

CV-2941, 2019 WL 2869056, at *5 (E.D.N.Y. July 3, 2019) (“If . . . [the respondent] chooses to

stay in the United States rather than care for her daughter in Poland while the authorities there

9 Even Dr. Kishinevsky did not conclude that simply living in Israel would pose a grave risk to S.P.; the

location “[did not] matter” to her. (Tr. 138:4-13.)

determine the parties’ respective custodial rights, the resulting incremental harm to [the child]

will flow from [the respondent’s] decision rather than [the Court’s].”).

b. The Petitioner’s Deportation

The respondent claims that the petitioner is subject to deportation in Ukraine, which he

says presents an “intolerable situation” for S.P. (See ECF No. 51 at 22-23.) But the respondent

has not shown by clear and convincing evidence that the petitioner’s deportation is likely or

imminent, or that the ramifications for S.P. if the petitioner were to be deported meet the grave

risk standard.

The petitioner has lived in Israel since 2014, and the Israeli government has not initiated

any deportation proceedings against her. (Ex. 22 ¶ 1; Tr. 20:24-25, 34:25-35:3.) She has applied

for a humanitarian visa in Israel, citing the political instability and military conflict in Ukraine

and her integration into Israel. (Tr. 34:22-24, 70:16-18, 72:20-25.)

Not only has the respondent presented no evidence that the petitioner will be deported, he

cites no authority for the proposition that a child faces a grave risk of harm because of the

petitioning parent’s immigration status, and the Court is not aware of any. The cases he does cite

do not support his theory. (See ECF No. 51 at 22-23); Miltiadous v. Tetervak, 686 F. Supp. 2d

544, 551 n.9 (E.D. Pa. 2010) (considering the respondent’s and the children’s asylum status in

the United States—the country to which the children were taken—as part of the habitual

residence inquiry); In re B. del C.S.B., Mendoza v. Miranda, 525 F. Supp. 2d 1182, 1194-95

(C.D. Cal. 2007) (considering the child’s immigration status in the United States—the country to

which the child was taken—in determining whether the child was well settled in the United

States), rev’d sub nom. In re B. Del C.S.B., 559 F.3d 999 (9th Cir. 2009) (“We can see nothing in

the Convention itself, in our case law, or in the practical reality of living in this country without

documented status, to persuade us that immigration status should ordinarily play a significant, let

alone dispositive, role in the ‘settled’ inquiry.”); Casimiro v. Chavez, No. 06-CV-1889, 2006 WL

2938713, at *6 (N.D. Ga. Oct. 13, 2006) (considering the child’s immigration status in the

United States—the country to which the child was taken—as a factor that weighed against the

child’s preference to remain in the United States).

The ramifications for S.P. if the petitioner were deported are equally speculative. The

respondent offered no evidence about what would happen to S.P. if the petitioner were to be

deported. Indeed, ordering S.P.’s return to Israel would “not alter the preabduction allocation of

custody rights,” Abbott, 560 U.S. at 9; thus, there is no proof that deportation or becoming a

ward of the State would be S.P.’s only options.

Although a grave risk of harm arises “where returning the child means sending him to a

zone of war,” Souratgar, 720 F.3d at 103 (quoting Blondin, 238 F.3d at 162), there is insufficient

evidence that returning S.P. to Israel—where he is a citizen, where the respondent is a citizen,

where the petitioner has lived continuously since 2014 without the initiation of deportation

proceedings, and where the preabduction allocation of custody rights would remain in place—

means sending S.P. to a war zone. The conjectural sequence of events that the respondent offers

does not amount to “clear and convincing” evidence that S.P. will face “severe” harm.

CONCLUSION

For the reasons stated above, the petition is granted. The Clerk of Court is respectfully

directed to enter judgment in favor of the petitioner. S.P. is to be returned to Israel as soon as

travel arrangements can be made. This order is stayed for thirty days to allow the parties to

resolve the timing and circumstances of S.P.’s return.

SO ORDERED.

__s_/_A_n_n__ M__ _D__o_n_n_e_l_ly_________________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

March 15, 2021