“Nesting” or “Bird-nesting” or in the US “Birds nest custody arrangement” is a label given to parents who are willing to allow their children to remain in the family home whilst the divorcing or separating parents take turns in living in the family home. This arrangement seems to be common in some US states and in Canada. In England and Wales it is an unusual arrangement. One reason why this may be so is that under the Children Act 1989 there is a presumption against any residence or contact orders being made unless it is in a child’s best interest. Thus such arrangements could be made privately without lawyers being aware of them.

A further reason it may not be a popular arrangement in England and Wales is the high cost of housing. The arrangement may envisage not less than 3 homes being available. One for each parent and one for the children.

Could it work for you?

If you do think this arrangement could be worthwhile and work for you then Margaret Hatwood, Family and Collaborative Lawyer at Anthony Gold provides the following tips:-

  1. Check your finances. You will need to be able to afford a separate home away from the family home as will your spouse. While perhaps the external residences away from the home do not need to be large they do need to be somewhere secure and somewhere you can keep your belongings and personal possessions. If you really do get on with your ex spouse then maybe the other property could be shared! You will not, after all be there at the same time.
  2. Consider the value of the arrangement for the children. Some would say that a bird’s nest arrangement is about ensuring the children are not disrupted by the separation. Whilst the adults who are more able to cope with the disruption bear the brunt of the changes.
  3. Will you both be living in the same town – this arrangement can only work if you remain close physically.
  4. Be honest about your relationship with your ex spouse. This sort of arrangement could only work where you are both amicable as you would need to share views on discipline and child raising techniques.
  5. Explain the situation to the children. Do not give them the impression this is likely to lead to reconciliation. They may misunderstand the situation otherwise.
  6. You will almost certainly need to set out a list of house rules in the family home. It may for example be worth having household and house maintenance arrangements drawn up as a formal contract.

Problem areas

Changeover of parents’ time is always a time of tension and misunderstandings whether it is the children who are changing over or the parents!

Ensure that the handover process is swift. If communication is difficult emails or texts may be helpful.

This sort of arrangement may break down when one of the parents meets a new partner.

Family partner at Anthony Gold Kim Beatson is also a mediator and has recommended this arrangement in mediation cases where there is a second property. It can be a practical short term solution if there are delays selling the family home.

One retired judge in Albuquerque in New Mexico Anne Kass admits to having ordered “nesting custody arrangements”. See “Nesting will it work for you” By Angela Green However she comments she has never seen a couple who were able to tolerate it for more than a couple of months. However she goes on to say that there are two reasons why she sometimes orders “nesting”. Firstly because it keeps the divorce playing field level. Neither parent is getting the upper hand. She explains when divorce proceedings start parents often jockey for position. Each tries to get the upper hand. Some see remaining in the family home will help them if there is a dispute about where the children should reside. Secondly she feels that parents who are required to move back and forth between an apartment one week and in the family home the next will have a first hand understanding of what it is like for their children to move backwards and forwards between their parents’ homes after the divorce. She goes on to comment “parents who have actually experienced the stress of living out of a suitcase, which is one aspect of visitation children of divorce experience, are more likely to develop sensible time sharing plans – plans that don’t force their children to switch back and forth too often, plans that allow their children the stability and peace of the primary stable home.

Many people think that these sorts of arrangements are fraught with difficulties. To name but a few:-

  • Arguments about who pays the bills.
  • Difficulties in housekeeping.
  • Privacy concerns.

Generally in our experience this is an arrangement that might work for a short period of time until family homes are sold.