One of the biggest problems facing divorcing couples is the impact of their separation on the children. There often seems to be no wholly positive solution to maintain stability for the children, and concerns are often exacerbated by financial constraints. As a result more innovative ways of trying to find a solution to balance affordability and the children’s welfare and stability are being explored.

A growing concept in the Netherlands, and increasingly the US, is the idea of ‘bird-nesting’, in which the children remain in the family home, with both parents rotating in and out whilst also living in either another shared flat or two separate homes. The principle behind this is that the children have the stability and structure of staying in one home, with the parents instead moving from home to home.

Whilst the intention behind this seems to be positive, in that the children endure minimal adverse impacts and the parents bear the brunt of the changes resulting from the divorce, this concept can be impractical. It calls for divorcing parties to essentially reside in the same home, and disrupts their ability to move on from the marriage and subsequent divorce, and is difficult as a long-term solution for even the most amicable separations. It is, however, a potential short-term solution, under the right circumstances. The pros and cons and the research available on the negative and positive aspects are considered below.

PROS

CONS

 Children get a sense of continuity as parents bear the brunt of the changes to ensure the children are minimally affected (Psychology Today) Privacy – The divorced/separated partners are essentially living in the same house, jut at alternate times. This can cause problems in close proximity with separated partner, especially when new partners come on the scene. (Psychology Today)
Can be cheaper overall as the additional residence can be modest as it only needs to accommodate themselves, not the children, and they don’t need to finance 2 sets of clothes and toys (Psychology Today) If parents choose to have a separate alternative property each this is likely to be more expensive. (Psychology Today)
Survey of 740 separated or divorced parents, 11% decided to keep their children in the family home and share the care of the children by taking turns living in the home. Children face less disruption to their lives and get to spend time with both parents at home, rather than associating one parent with a place other than home. (UK research by Co-op Legal Services) Only works if the parents are in close proximity and have an amicable relationship. (Psychology Today)
52% of Co-op surveyed estranged couples thought that keeping the children in the family home would result in less interference in the children’s lives. 16% would have preferred a bird’s nest custody arrangement if this had been an option. Children can be near their friends and stay at the same school. (UK research by Co-op Legal Services) This arrangement should “not…be used any longer than is absolutely necessary”. (Ackerman 2006: quoted in A Comprehensive Guide to Child Custody Evaluations: Mental Health and Legal Perspectives)

Usually doesn’t work long-term as it ‘doesn’t allow people to have their own lives’ (Sandra Morris: president of the American Academy of Matrimonial Lawyers: quoted in The Wall Street Journal: Silverman and Higgens).

Lack of evidence showing long-term effectiveness: in a poll of 1,776 people, only 1% of divorced people with children are trying it and another 2% said they tried it and it failed. (Wall Street Journal: Silverman and Higgens)

25% of Co-op Legal Services surveyed couples said it would have been helpful to themselves to be near their own friends and family during the divorce and maintained a level of continuity in their family home. Prevents the divorced couple moving on as they have to continue to share their home and belongings with their ex-partner (Telegraph)
In the short term it can work effectively when there are only a few months left in the academic year or the housing market is at a low point. (The Wall Street Journal Article by Emma Silverman and Michelle Higgens) Can give the children the false sense that their parents will reunite as they see them in the same home and get along during the change-over. (Telegraph)
NY State Supreme Court justice, Josh S. Mattina, once ordered bird-nesting because it was important for the parents to understand the dislocation that the children often go through in a divorce. Even if just temporary, with the intentions of parents having permanent and separate abodes, understanding the struggles the children go through in boomeranging from one place to the next may help to ensure continuity and co-operation between parties for the sake of the children. (Wall Street Journal: Silverman and Higgens) Effectively giving the house to the children and having both parents come and go gives the children a sense of entitlement which may adversely affect their behaviour (Robert Stephan Cohen, a NY divorce lawyer: quoted in Wall Street Journal: Silverman and Higgens).

Has been considered in isolation – in considering a bird-nesting arrangement, parents/courts consider one variable of the child as in a vacuum, the stability/instability. It is not considered in its contributory capacity towards the other effects on the child’s happiness in a divorce, such as their parents’ apparent happiness. (Michael T.Flannery, Uni of Arkansas, ‘is ‘Bird Nesting’ in the Best Interest of Children?’)

Can work for those who have an amicable relationship and can set a strict division of labour. (Wall Street Journal: Silverman and Higgens) May not actually be the best solution for the children. If parents are already shouting and arguing, sharing a home may exacerbate this. (Wall Street Journal: Silverman and Higgens)
Takes a considerable amount of co-operation to work, and this can be highly impractical for a divorced couple. (Wall Street Journal: Silverman and Higgens)

Conclusion:

  • It is highly dependent on the separated parties’ relationship – can only work if largely amicable, can create an effective division of labour and live in close proximity.
  • If only one modest additional property is required this can work out cheaper.
  • Whilst it appears to be in the child’s best interest, it cannot be considered in isolation because many other factors contribute to the child’s happiness and the apparent unhappiness of the parents in the arrangement may have an adverse impact which outweighs the positive of child continuity.
  • The bird-nest arrangement is only really a short-term solution, and then it must be considered carefully. Parents are unlikely to be able to move on, new partners may increase the strain, and the parents themselves lose their privacy and sense of security in their housing situations.
  • It is seldom likely to work as a long-term solution.

Written by: Jemma O’Neill (Senior Solicitor)

– Jemma O’Neill works in our matrimonial team specialising in finance and children cases on divorce and separation

© 2016 Goodman Ray | Legal | Authorised and regulated by the Solicitors Regulation Authority: 60514

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