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Sunday, November 30, 2014

Jacksic v Serif, Not Reported in F.Supp.3d, 2014 WL 6685375 (D.Ariz.)[Serbia] [Rights of Custody] [Petition denied]

          In Jacksic v Serif, Not Reported in F.Supp.3d, 2014 WL 6685375 (D.Ariz.) 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.  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 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 was a United States citizen. Subsequently, Serif applied for visas for M.J. and her to move to the United States.

      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 Belgrade
Court ordered that Jaksic's complaint was withdrawn and informed Jaksic that he
could appeal the ruling within 15 days. Jaksic did not appeal the ruling.

     On August 21, 2013, the United States issued immigrant visas to Serif and M.J.

On September 2, 2013, both visas were endorsed by the U.S. Department of Homeland Security, U.S. Customs and Border Protection. Both Serif and M.J. were issued U.S. permanent resident status as of September 2, 2013. On September 3, 2013, Esad Serif posted photographs online of Serif and M.J. on an airplane, apparently near South Bend, Indiana. On September 3, 2013, Jaksic tried to call Serif and could not reach her. Jaksic then called Serif's father, who told Jaksic that Serif and M.J. had departed for the United States. The Court found that Serif removed M.J. from Serbia on September 2, 2013.    After Serif and M.J. moved to the United States, Jaksic had conversations with M.J. via Skype about once a month, but Serif did not talk to Jaksic. During a January 2014 Skype conversation, however, Serif told Jaksic that her work schedule had changed and they needed to change Jaksic's Skype contacts. Jaksic called Serif bad words in front of M.J., and thereafter Serif did not permit Jaksic to have any Skype conversations with M.J.   On June 16, 2014, Jaksic submitted an Application Under the Hague Convention on the Civil Aspects of International Child Abduction to the U.S. Department of State for the return of M.J. On September 3, 2014, Jaksic initiated the present action, alleging that the September 2, 2013 removal of M.J. from Serbia breached Jaksic's custody rights.

The district court found that  the removal took place on September 2, 2103, and the parties agreed that immediately prior to the removal, M.J. was habitually resident in Serbia. It observed that as  a condition for any relief under the Hague Convention, Jaksic had  establish by a preponderance of the evidence that the removal of M.J. from Serbia was in breach of his custody rights and at the time of removal Jaksic was exercising those rights. See Convention, Art. 3. The dissolution judgment of the Belgrade Court did not expressly grant Jaksic any right of custody or unconditional right of access. It ordered that Serif will independently exercise parental rights and Jaksic will have contact with M.J. only when Serif permits it. Jaksic did not provide any Serbian legal authority or expert testimony showing that the dissolution judgment, which incorporated the agreement on parental rights, would 
be interpreted by the Belgrade Court as granting Jaksic greater rights than those actually stated. At the time of the dissolution, Jaksic may have believed that Serif agreed he was guaranteed access to M.J. and participation in decisions about M.J.'s care, education, and residence, but that is not what the court documents stated. Jaksic had opportunity to have the Belgrade Court modify the dissolution judgment if it was incorrect, incomplete, or unfair, but he abandoned his lawsuit before the Belgrade Court. Jaksic frustrated the very proceedings that might have given him rights of custody inconsistent with Serif's immigration to the United States with M.J. He knew Serif claimed and intended to exercise that right.
Therefore, he cannot show this Court that he is entitled to greater parental rights than those provided by the dissolution judgment.  Because Jaksic had not established by a preponderance of the evidence that the removal of M.J. from Serbia was in breach of his custody rights and at the time of removal Jaksic was exercising those rights, the Court did not decide additional issues raised by the parties.

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