United States District Court, D. Arizona
FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER
NEIL V. WAKE, District Judge.
Before the Court is Kosto Jaksic's Verified Complaint and Petition for Return of Child to Plaintiff (Doc. 1). Based on the following findings of fact and conclusions of law, the Court will deny the petition.
On September 3, 2014, Petitioner Kosto Jaksic filed a petition seeking the return of his child M.J. to Serbia pursuant to the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001 et seq., which implements the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 ("Hague Convention" or "Convention"). Jaksic alleges that his former wife, Respondent Mina Serif, removed M.J. in breach of Jaksic's custody rights.
On November 19, 2014, the Court held a hearing at which Jaksic and Jaksic's sister testified telephonically from Serbia through a court translator and Serif and Serif's husband testified in person. Both parties were represented by counsel and proffered documentary evidence. The Court took the matter under advisement and now makes the following findings of fact and conclusions of law.
II. FINDINGS OF FACT
On October 1, 2005, Jaksic and Serif were married in the Republic of Bosnia and Herzegovina. On March 1, 2006, their son M.J. was born in the Republic of Serbia. Beginning in August 2010, Jaksic and Serif lived separately, M.J. lived with Serif, and Jaksic continued to see M.J.
On March 23, 2011, Jaksic and Serif's marriage was dissolved by the First Basic Court of Belgrade, Republic of Serbia ("Belgrade Court") based on the parties' mutual consent to dissolution and their signed agreement on the exercise of their parental rights related to M.J. The parties agreed that M.J. would live with Serif, and Serif would independently exercise parental rights over M.J. for care, guardianship, and upbringing. The parties agreed that Jaksic would contribute 20% of his regular monthly earnings after deductions to support M.J. The parties also agreed on the manner of maintaining contact between Jaksic and M.J., which was that Jaksic would see M.J. when Serif agreed and Jaksic had time. The parties did not agree to any schedule or minimum time for Jaksic's personal contact with M.J. The parties' agreement did not establish a procedure for Jaksic to obtain personal contact with M.J. without Serif's agreement. The Belgrade Court determined that the parties' agreement on parental rights was in the best interest of the minor child and accepted the agreement. The March 23, 2011 judgment ordered that the marriage is dissolved, the minor child M.J. is entrusted to his mother Serif "who will exercise the parental right on her own, " Jaksic is obligated to pay monthly child support directly to Serif, and the parties "shall regulate the manner of maintaining personal relations with the minor child with his father by mutual agreement." After the divorce, Serif permitted Jaksic to see M.J. in Belgrade and to take M.J. out of Serbia to visit Jaksic's parents and other family members.
On August 15, 2011, Serif married Esad Serif, who is a United States citizen. Subsequently, Serif applied for visas for M.J. and her to move to the United States. She did not tell Jaksic that she had applied for visas because it was a lengthy process and she may have been unsuccessful. However, Jaksic suspected that Serif planned to move to the United States and take M.J. with her.
On January 5, 2012, Jaksic initiated a lawsuit in the Belgrade Court to modify the judgment regarding custody of M.J. His complaint described the dissolution judgment as entrusting the custody of M.J. for care and protection to Serif, "who shall independently perform her parental rights." The complaint alleged that during the consensual divorce the parties had agreed that significant decisions regarding M.J., including change of residence, would be decided in a consensual, agreeable manner, but Serif was excluding Jaksic from such decisions. The complaint also stated that Jaksic had concluded that Serif intended to leave the country with M.J. and her current spouse, an American citizen, and to immigrate to America. Jaksic requested that the child custody provision of the March 23, 2011 judgment be modified to provide joint parental rights.
A few days after Serif received notice of the Belgrade Court lawsuit, she had a telephone conversation with Jaksic during which Jaksic strongly opposed Serif taking M.J. to the United States and used foul language. Serif perceived Jaksic as possibly threatening her physically. Serif forbade Jaksic from seeing M.J. for at least six months and notified the court social worker and the police about their conversation.
On June 9, 2012, during a court proceeding, Jaksic said he would amend his complaint because he did not want to modify the child custody decision; he wanted only to organize his contact with M.J. to have a more precise schedule for visitation. But he did not amend his complaint.
On September 19, 2012, Serif signed a statement giving her consent that M.J. could travel to Bosnia and Herzegovina, Republic of Srpska, from September 20, 2012, to September 25, 2012. Jaksic took M.J. to Bosnia and Herzegovina so that M.J. could see his grandparents and cousins.
On October 23, 2012, a psychologist for the City of Belgrade reported to the Belgrade Court investigative findings and recommendations regarding custody of M.J. On October 30, 2012, Serif appeared at the scheduled hearing on Jaksic's complaint, but Jaksic did not appear and did not justify his absence. The Belgrade Court ordered that Jaksic inform the court whether he wanted to continue the lawsuit, and if he did, he should submit a motion to amend the complaint. The Belgrade Court warned Jaksic that if he failed to comply with an order of the court, the complaint would be deemed withdrawn. On February 1, 2013, the ...