Bird’s Nest Custody: Is It a Good Option for Your Family?

Among several bird species, the male and female work together to build their nest, forage for food, and feed their young. When the time is right, the babies leave the nest and begin life on their own. Now there’s a custody arrangement gaining popularity. Its name offers a nod to the avian world in its reference to post-divorce parenting: bird’s nest custody. It is a uniquely child-centric approach that is beginning to pick up traction.

Birdnesting: A Custody Arrangement Gaining Popularity

Increasingly, families are finding that shuffling kids back and forth between Mom’s house and Dad’s house isn’t in their children’s best interest. Bird’s nest custody is a co-parenting option that prevents children from having to split their time between their divorced parents’ homes. Instead, the children stay put and the parents alternate moving in and out, “like birds alighting and departing the nest,” according to a Psychology Today article on the topic.

This option works best when the parents are co-parenting, as opposed to an arrangement where one is the custodial parent, the Psychology Today article stated. The divorced parents live in a different home when they aren’t in the family home with their children. That home might be a place of their own, or a second home the divorced parents share.

How a Bird’s Nest Custodial Arrangement Is Reached

Bird’s nest parenting likely originated about 16 years ago, when a Virginia court ruled that the best solution for two young children involved them remaining in their family home, according to an article in The Telegraph.

This is an arrangement that tends to be reached voluntarily by the divorcing couple. However, there is a case of it being court-ordered – a 2003 ruling in Canada made news when the judge “told parents to stop treating their children like ‘Frisbees,’ and imposed bird’s nest custody without either party requesting it.”

However, this case aside, the “bird’s nest” custodial arrangement will not be accepted by the judiciary as a co-parenting option to be ordered without the agreement of the parties as a standard practice. Judges must first be convinced that the approach is in fact in the best interests of the children. There need to be studies done and the approach must be supported and encouraged by the community of child custody evaluators. Even if bird’s nest is accepted by family court judges, the bird’s nest approach would only ever be ordered as a temporary solution used during the pendency of a divorce – perhaps while the family residence is on the market for sale.

If the arrangement were ordered for any extended period of time – over the objection of one of the parents – you would have a scenario where the parents are substantially financially tied to one another for as long as the arrangement lasts. While the best interests of children is always the overarching priority in family court, there are limits to what the Court will entertain.

Divorcing parents with children no doubt have an unbreakable tie when it comes to co-parenting, but they have a right to a clean break when it comes to financial ties. The bird’s nest approach lasting longer than the divorce proceedings extends that financial tie beyond what is contemplated and requested by divorcing parents. For that reason, absent an agreement of the parties, birds’ nest will not be a realistic option as an extended and sustainable co-parenting arrangement.

Prerequisites for This Type of Parenting Plan

There are two foundational prerequisites for a bird’s nest custodial arrangement: adequate financial resources and willingness to put the best interests of the children before selfish motives and animosity. Without both, the plan is destined to fail.

Bird’s nest custody is only practicable when the parents have the collective financial resources to support the arrangement. It is a significant financial sacrifice that, if made, provides a best-case scenario as far as stability for children of divorcing parents.

However, even given adequate financial resources, if the parents cannot set emotions aside and work together amicably, the bird’s nest approach will only serve to foster even more conflict between the parents. Divorces can be contentious and emotional, and bird’s nest custody requires a level of communication and cooperation that some couples simply can’t provide. But in situations where the divorcing parents remain on friendly terms and genuinely desire to make the children’s needs the priority, this is an option.

If you think bird’s nest custody might be a good option for you, here is how to start:

1. First, educate yourself on the approach. How has it worked for other families?
2. Next, work on a budget to determine if it is even feasible to attempt.
3. Draft a plan that includes a schedule and guidelines for implementation. There should be clearly defined boundaries. For instance, if it’s mom’s week at the house with the kids, then dad can’t come over. Each parent should have a “private space” in the house that cannot be accessed by the other parent. There must be clearly defined agreements regarding who pays for what and when.

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John Griffith is a partner at Griffith, Young & Lass Family Law, offering assistance and representation that guides their clients through the legal process and helps protect them and their families.