On March 15, 2021, in the case of Pozniak v. Shwartsman, the U.S. District Court for the EDNY ordered a minor child to be returned to Israel under the Hague Abduction Convention. Ms. Pozniak (a Ukrainian national) and Mr. Shwartsman are unmarried parents to one 9-year-old child, SP. During the first few years of SP’s life, the family moved between Ukraine and Israel, until about 2014, at which time the family settled in Israel, sometimes under the same roof, and, at other times, not. Mr. Shwartsman traveled with SP a few times to New York City. The parents had no formal custody agreement, but worked together to ensure access between SP and both parents. In July 2019, Mr. Shwartsman traveled to NYC with SP. At trial, the parents disagreed as to the length of the trip, with Mr. Shwartsman arguing it was meant to be indefinite. Ms. Pozniak argued that she agreed that SP return no later than September 1st for school, but that date ultimately was moved back, later and later, by Mr. Shwartsman. In or about November 2019, Ms. Pozniak noticed a difference in SP’s demeanor when he talked to her. In March 2020, she received a family court filing from Queens County NY Family Court (the proceedings of which are stayed pending the resolution of the Hague Abduction return petition).
While Mr. Shwartsman made two other arguments, this blog will focus on his grave risk exception argument. He specifically argued two points: returning SP would put him in psychological harm, and there is a grave risk in that SP’s mother is at risk of being deported to Ukraine. Judge Donnelly found neither argument persuasive. Mr. Shwartsman called the minor child’s treating therapist to testify that the child felt “depersonalized” and “out of control” around his mother, and may suffer from emotional and behavioral stressors that were beyond his coping skills if returned. The basis of her opinion came from meetings with Mr. Shwartsman, his wife, and the child as part of a therapeutic treatment process. Ms. Pozniak’s expert pointed out that this was far from a forensic evaluation, was not dispassionate, impartial or objective, and did not follow the guidelines promulgated by the Association of Family and Conciliation Courts. The limitations of Father’s expert were severe and her report was flawed. In addition, Mr. Shwartsman did not provide sufficient evidence that Ms. Pozniak, who had been living in Israel since 2014, and had filed for a humanitarian visa in Israel, was at risk of being deported.