Case Update (28 June 2024): Mirtti v. Mirtti; habitual residence shifted to USA; evidence included an agreement negotiated between the parents

The parties were married in Finland in 2015 and are the parents of two daughters, born in 2015 and 2019, who are dual Finnish-US citizens. The family resided together in Finland until July 2022, and the children attended “school/day care, visited with family and friends, went on outings, and participated in activities such as dance and swim class.” In 2022, “Petitioner accepted a one-year appointment to work in the United States as a Visiting Associate Professor… in Atlanta, Georgia. The appointment was set to begin on August 1, 2022 and end on July 31, 2023.” His visa would expire on the end of his appointment, at which time he was required (short of acquiring another visa or legal status) to return to Finland. During the appointment, “Petitioner also remained employed by the University of Helsinki…” The family leased their home in Finland for one year, forwarded their mail for one year, and placed furniture and other items in storage in Finland. The Finnish school and daycare were contacted about the year in the US and about holding spots for the children upon return. The family, when in Atlanta, chose not to renew their Atlanta rental residence’s lease when it expired about 2 months short of the end of Petitioner’s appointment, and so the Respondent and children traveled to Pennsylvania to stay with family while the Petitioner finished his appointment at Emory. They did agree, through their testimony, “at some point in early-2023, they talked further about the possibility of remaining in the United States instead of returning to Finland at the end of July.”

The parties had email exchanges about their future life plans in the first part of 2023. After some exchanges, the Respondent wrote-up their discussion and sent it to Petitioner by email. In the email write-up, she included the following language: “the girls and I can continue to live in the USA, until you and I would agree otherwise, ….” Apparently, the Petitioner made edits to portions of the write-up, but he did not edit the language about the children’s residence in the USA. The court opinion did not excerpt much, if any, of the write-up.

Ultimately, the exchanges between the parties led to a “written agreement they had drafted”, which they executed in July 2023. Proximate to the agreement’s execution, the Respondent filed for divorce in Georgia, which she later described as a mistake. She had apparently asked her attorney to prepare the divorce filing when she was unsure that the Petitioner would sign their agreement, and the papers were filed inadvertently. They were ultimately withdrawn about five months later. The Petitioner returned to Finland as required. Upon return, he took certain steps that approximated tying up loose ends in Finland with their house, and he visited with his Wife and children in Pennsylvania.

In late October 2023, “Respondent finally emailed Petitioner copies of the maintenance agreement and parenting plan that her counsel had drafted.” “Petitioner disagreed that the draft agreements Respondent sent represented what they had agreed to, and he did not sign the documents.” This provoked Petitioner to seek legal advice “about initiating a request for return of the children.” In early December 2023, he filed a request to return the children to Finland pursuant to the Hague Abduction Convention. He then also filed a divorce petition in Finland. In his return petition, the Petitioner apparently made a “cursory reference” to the July 2023 agreement, and called it a “unilateral sham”. There also was some argument at trial that the inadvertent Georgia divorce filing may have voided the agreement.

Regardless, the court reached the conclusion that the children’s habitual residence shifted to the United States before the date of alleged wrongful retention. The court seemed to imply that the habitual residence might have shifted during the one-year agreed appointment in Atlanta. But, it followed up by indicating that the signed July 2023 agreement was definitely evidence of a shift in habitual residence to the USA. Separately, the court found that the Petitioner consented to the residence of the children in the USA with “both the agreement he negotiated and signed on July 19, 2023, and his words and conduct after that time, including proposing an addendum to the agreement which contained language confirming that the children would remain in the United States; pursuing marital counseling with Respondent as agreed; continuing his United States job search with Respondent’s assistance; renting the family home in Espoo immediately upon his return; and engaging in regular, friendly conversations with Respondent expressing his desire to work on their relationship and find a job in the United States.”

The court therefore denied the Petitioner’s request to return the children to Finland. A notice of appeal has been filed.