By Amanda Driscoll, Law Clerk*

What is Nesting?

When it comes to divorce, nesting is a new trend that is on the rise nationwide. Nesting is the process by which the mother and father take turns being available in the home, while the children remain within the “nest,” or family home, consistently throughout the process. For instance, the father may have certain days or time intervals each day, while the mother occupies the other time interval, like a shift change in a sense. Nesting allows divorced parents to give children stability and reduce financial burden by providing themselves with the proper amount of time to wait before selling the family home or investments.

History

The idea and use of nesting is thought to have originated in 2000 in the United States, upon a Virginia court agreeing that the best solution for two young children involved in a family with two divorcing parents was for the children to remain within the family home. Generally, nesting arrangements were designed with the mother staying in the family home with the children during the school/work week, while the father would stay at the home on weekends. Since its origination, nesting has become increasingly popular within the States, even appearing on multiple US television TV series.

Currently, the concept of nesting has crossed over the Atlantic, with a growing number of British courts encouraging shared parenting, rather than one parent receiving sole custody. Generally speaking, courts would not ordinarily force a divorced court into nesting, otherwise referred to as “bird’s nesting,” but a groundbreaking Canadian case in 2003 proved to be quite an exception to the divorce settlement norm. In this case, the judge instructed the divorcing parents to stop treating their children like ‘frisbees,’ and enforced a mandated bird’s nest custody arrangement for the couple without such being requested by either party.

Are there any negatives in this process?

Despite the positive impact nesting has had by many couples who have tried it, parting ways while still keeping their children as their top priority, some therapists, may oppose this type of activity. They caution that the arrangement encroaches on the parents’ privacy during a time necessary to establish their own new lives and adapt to new routines. Another concern involves whether such close collaboration with the divorcing partner allows for closure and the ability to move on. Also, the nesting routine might confuse children, seeing their separated parents still so closely involved with one another. Finally, if the parents fight over money, and struggle with having to transport their belongings to and from the apartment, without a sense of belonging that either domicile is their own, it may be difficult for the children.

One method to help avoid such nesting tension is by setting strict ground rules regarding assigned chores and a particular time of day in which each partner is free to take a break.  According to many psychologists, one of the most effective methods is to establish a plan that involves limited direct contact, such as one parent that drops the children off at school, while the other parent is assigned to pick them up. There needs to be a clear-cut plan that can be followed consistently in order to end the nest, providing closure for both partners while maintaining the nesting arrangement until closure can be attained for both the parents and children alike. Nesting should never be used indefinitely.

Psychologists generally say that children can adapt without emotional harm from even the worst divorces, so long as the parents work together as a team. Moving houses, or going long periods of time without seeing one of the parents can be overcome by children, provided that conflict is not involved in the divorce arrangements. Tension, constant arguing, or situations where the parents don’t communicate has a detrimental effect on children.

Attorney Debra L. Smith of Watertown, Massachusetts suggests that parents should take the high road and treat their child’s other parent with respect and be civil towards that parent. The reason is that the other parent will be in the child’s life as they will see them at school and sporting events, graduations, weddings and even later in life by sharing time with their grandchildren. A long term plan that could be that a good therapist, counsel or mediator can work with the divorcing couple to create a solid parenting plan and spell out arrangements for parenting time, as well as joint parenting decisions.

One option that can potentially create a sense of neutrality for parents who agree to share custody of their children is deciding to keep their house, while also sharing a one-bedroom apartment in close proximity to the home, the cost of rent and ability to nest.  This can provide the parents with a feeling of escape, and relaxation, by leaving the home and taking the time to become a single parent.

Resources:

Sovich, Nina, When Parents Divorce, the Children Get the House, Wall Street Journal. (October 26, 2016). Available at: https://www.wsj.com/articles/when-parents-divorce-the-children-get-the-house-1477496914.

Bernstein, Elizabeth. The Child Focused Divorce. The Wall Street Journal. (September 6, 2011). Available at: https://www.wsj.com/articles/SB10001424053111904537404576552631228768332.

Kruk, Edward, “Bird’s Nest” Co-Parenting Arrangements: When Parents Rotate in and Out of the Family Home, Psychology Today. (July 16, 2013). Available at: https://www.psychologytoday.com/blog/co-parenting-after-divorce/201307/birds-nest-co-parenting-arrangements

Sanghani, Radhika, ‘Bird’s nest custody’: The smart new way to divorce, The Telegraph, (February 7, 2016).

*Amanda Driscoll graduated from Suffolk University in May 2013 with a major in public administration and a minor in business law. While at Suffolk University, Ms. Driscoll was in the Griffin Honor Society,  the Secretary of the Suffolk University Environmental Club and an Eco Ambassador of Suffolk University Sustainability. She currently attends Mass. College of Law in Andover, Massachusetts, where she expects to graduate with a juris doctor degree in 2018 and Suffolk University in public administration, where she expects to obtain her masters degree in public administration in 2017.  Ms. Driscoll received a CALI Award for the highest grade achievement in the study of Writing and Legal Research in June 2016.