Family Law

Nesting and Child Custody: Is it Right for Us?

By Melissa Heinig, Attorney
Divorce can cause an overwhelming amount of fear and instability for children, especially when it comes to custody. Learn more about nesting and whether it can help increase stability for your children when they need it most.

Divorce can cause an overwhelming amount of fear and instability for children, especially when it comes to custody. There’s a new trend on the horizon, called nesting, which is an alternative to traditional custody arrangements. Some families are utilizing this to help ease the emotional damage that may come with divorce and custody issues. Learn more about whether this movement may benefit your family.

What Is Nesting?

In most divorce cases, a judge will divide the couple’s property and debts equally, and create a parenting plan for the children. Not all cases require a judge’s decision, and most courts prefer when couples work together to make the best divorce plan for their situation.

Typically, divorcing couples with a home will:

  • sell the home and split the profit (or debt), or
  • one parent will “buy out” the other and will solely own the home.

Parents typically each get new residences or one parent stays in the marital home, while the other parent gets a new place. In either situation, if the parents are sharing custody, the children are usually shuttled between homes, bringing extra clothes, back packs, homework, and other items for overnights visits. This can work well for some kids, but can be extremely difficult for others.

Nesting, also called "bird nesting" in divorce parlance, is an alternative to this "two-home" scenario. It's a relatively new concept that first began in 2000 when a judge in Virginia ordered a couple to take turns spending time with their children in the marital home.

The big question with nesting is "where will the parents go when they have to leave the family home?" There are a variety of options available to parents who decide to try a nesting arrangement, including:

  • one or both parents can remain homeowners or lease holders of the family home and then rent or buy a second residence where they rotate in and out, depending on the visitation schedule
  • others may find that sharing a second home is too difficult, so both parents may have a separate, second home—this decision is entirely dependent on the parents' finances, their relationship, and their ability to work together.

Whatever specific two-home arrangement the parents choose, the end result with nesting is that the children never have to leave for overnight visits and can stay in a home they know and love, while their parents leave to go to the second residence when they are alternating time with the children.

This kind of custody agreement prevents the children from feeling “bounced around” between homes and creates more stability. Nesting is a child-centered arrangement that can be temporary or used as a permanent custody arrangement, but it will only work if parents can agree and communicate.

Is Nesting Right for Us?

Like most custody agreements, the number one consideration for parents should be what’s in their children's best interests. For this type of arrangement to be successful, you must be able to openly communicate about your child’s school, medical, and general welfare. Additionally, you should be able to talk about any issues that may affect your residences. For example, both homes should be located near each other to create less of a burden on the parents during visitation. Finally, if you and your ex plan to share time in both homes, you must feel comfortable with this notion and trust your ex around your belongings.

Cost

We often refer to home ownership as the “American dream,” but it’s challenging and can be very expensive. With a nesting arrangement, parents may own not just one but two homes. Maintenance costs may double, and parents will need to determine if they can afford the extra costs and who will be responsible for them when they arise.

However, in most cases, parents can start off by renting a small apartment to share, rather than buying a second home for nesting purposes.

Another factor that you should consider if you own the home where the children live is which parent is going to claim the residence as their homestead for tax purposes. This can greatly alter one’s tax expectations each season, so you should discuss it before deciding that a nesting agreement is right for you.

Agreement for Maintenance

Not only should parents consider the financial ramifications of owning multiple homes, but they also need to talk about who will be responsible for daily maintenance and upkeep. For example, if parents have two homes, which parent will:

  • clean the home
  • change bedding
  • do laundry
  • make minor repairs, such as a broken door, or
  • be responsible for major repairs, such as a leaky roof.

New Relationships

Parents must also consider the future and consider what will happen if either of them enters a new relationship. Nesting can work, but many problems can arise if one parent has begun dating, and the other parent has hard feelings or the new partner feels uncomfortable with the shared living arrangements. Your agreement should include whether overnight guests are permitted at either home if a new significant other becomes involved in the children's lives.

Parenting Time

In a typical divorce, a judge would award parents either legal or physical custody of the children (or both) and would create a visitation schedule for the noncustodial parent. In nesting cases, the parents are creating their parenting plan, so it’s important that they address each parent’s visitation with the children in a written document.

Parents can choose to spend equal amounts of time with their children in the family home, or, they can create a more traditional schedule, where one parent spends the weekdays in the home and the other parent visits on weekends (or alternating weekends.) Since a nesting arrangement is only something that can happen when parents agree, you will be in charge of the custody plan and creating an ideal schedule depending on your family's needs and parental availability.

Drafting an Agreement

If nesting seems like it will work for your family, it’s important to document your agreement in a way that makes both parents feel protected. Parents can each hire their own attorneys to assist them in creating their plan.

Another alternative is to try mediation—a voluntary process where both parents meet with a neutral third party who will help them resolve disputed issues.

Choosing your mediator is an important step, and you should search for someone who has experience with child custody and nesting arrangements. If parents reach an agreement, the mediator can draft the document for the parents and a judge to review and sign. There is a cost associated with mediation, but it's usually a fraction of the cost of a contentious divorce.

Can I Change a Nesting Agreement?

Once the judge signs the agreement, both parents will need to follow it. Parents can agree to change the terms at any time, but if you can’t agree, the parent who wants to modify the custody arrangement will need to ask the court’s permission.

Most states have specific requirements that the parent must meet before a judge will change a custody order. For example, in North Carolina, a parent must show that there has been a change in circumstances since the last court order and that a change is best for the children.

In the alternative, parents can add language to their initial agreement that there is an end date to the nesting arrangement, such as a child entering kindergarten or graduating from middle school, and when that condition is met, custody will revert to a different schedule.

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