Bird Nesting: an Interesting Child-Custody Arrangement

What is “Bird Nesting” – and How Does it Work During and After Divorce?

Essentially, “bird nesting” is when the children “get” the house. Both parents move out of the family home and establish their own, separate residences. The children stay in the family residence, and the parents move in and out according to the child custody agreement. It can work under certain circumstances, and it is a child-centric custody option that may minimize the disruption caused by the children moving back and forth, says Mari J. Frank, an divorce lawyer and mediator from Orange County, CA who has had family-law clients choose this unusual child custody option.

“If the parents are working very collaboratively, this may provide a greater sense of stability because they do not have to move from one parent’s residence to the other’s or be uprooted at all; it is the parents who do the moving around,” she says. For bird nesting to work, however, Frank says that several conditions must be in place. “You must have the financial resources to support three residences. But more than that, you must remember that you will have to work out an agreement with your spouse as to all the chores in the home. Since that can be another source of conflict, from my experience, it works best if you have a live-in housekeeper to help do the laundry, keep the home in order, do the shopping, take the kids to appointments, etc. This again is costly, and may not meet your needs.”

“Even if you have the wealth to support this, just imagine how challenging it is for mom and dad to move in and out of the home and work full time!” Frank exclaims. “What if mom or dad forgets something they need at the ‘bird nest’ house? Can they just stop by during the other parent’s custody? What about when one of the parents decides to marry again? How does that impact the situation? Although on first blush, and maybe when the parents first separate, this may seem like a viable option, the truth is that most parents divorcing need to establish separate residences and new lives, and they want to “cut the cord” with the other. Although it is never easy, the children will adjust to having a bedroom at both parent’s homes with clothes, books, toys, computer, etc.

“To make it easier on the parents and the children, all the research studies find that children do adjust better when the parents live in close proximity to each other. You and your spouse should try to live within a mile or two of each other. That way, the kids can still go to the same school, ride bicycles back and forth, and it’s easier for parents to jump in the car with the children to pick up the homework project they forgot on the way to school. The parents can also more conveniently and quickly exchange custody, and spend more quality time with the children. Remember, to Bird Nest effectively, you need to have the funds, and more than that, you need to be able to set forth positive communication and agreements with your ex-spouse. It is most likely to work if you are developing a “Bird Nesting” agreement in mediation because you will focus on problem solving, and in your joint sessions you can tweak the agreement as needs change.”

“However, the reality is that if you could effectively communicate and negotiate with your spouse, you would probably not be dissolving the marriage. On a short term basis, if you have a ‘tight’ bird nesting agreement with sufficient funds, household help, and cooperation, bird nesting may be a transitional custody approach to help your kids take incremental steps in the process to become accustomed to being on a schedule with each parent separately. Be aware of the challenges, and plan for a time when the children will progress to the stage of spending time at mom’s house and dad’s house.”

Mari Frank is a divorce attorney-mediator in Laguna Niguel, CA. She has been featured on numerous national television shows including 48 Hours, Dateline, NBC Nightly News, and The O’Reilly Factor and in newspapers across the nation, including the L.A. Times, The Washington Post, and The Wall Street Journal.