New Approach to Custody Arrangements

“Nesting” provides another alternative for divorced parents with children.

A factor in many divorces today is the custody of the children. When parties divorce, one intact family unit becomes two family units. The Courts strive to determine a custody schedule in each case which serves the best interests of the children. Traditionally, this has meant that one parent is the primary residential custodian of the children and the other parent has specific days and times to see the children. Today, the Courts strongly favor a shared custody arrangement with each parent having equal time and responsibility for the children. The determining factor in all cases is the best interests of the child(ren) involved. The Courts are not required to become involved in a custody schedule if parents are able to reach an agreement and can follow the agreement with built-in flexibility.

There is a small growing trend of a post-divorce child custody arrangement called “nesting.” With nesting, the divorced parents, rather than the children, move in and out of the marital residence. The children live at home and the separated or divorced parents take turns living with the children, but never at the same time. A core element of this arrangement is that each parent maintains a separate residence where they live on their “off” weeks. Specific access for the noncustodial time may be made during the week such as a dinner visit outside of the “nest.”

One may ask, how can divorcing parents successfully manage this arrangement when they could not keep their family unit intact? This is a fair question and the nesting arrangement only works in limited situations. However, for the best interests of the children, it is worth considering. Certainly one consideration is cost. The arrangement can be expensive, as it generally requires three separate residences be maintained: the “nest” plus a separate residence for each parent. Nesting is not meant to be a long-term solution, but rather serve as a transitional time for the family. For example, with the real estate market today, it may make good economic sense to wait to sell the marital home. In the interim, the parents may have an opportunity to try nesting. It may be a healthier environment for the children rather than a tense family home where parents cannot live together.

The concept is progressive. Nesting has its origin in a Virginia case, Lamonte v. Lamonte, 2000 Va. App Lexis 434 (Court of Appeals of Virginia). In Lamonte, the court made a nesting custody arrangement in which the children (ages 3 and 5) remained in the home, with the mother staying in the home during the week and the father on the weekends. The court concluded, “We think that the benefits of a nesting arrangement are best achieved where the children are able to stay in the matrimonial home, particularly if it has been the only residence that they have known. Time and time again, we have seen cases where the children are being treated as Frisbees. Parents do not seem to appreciate the gross disruption to which children are subjected where one of the parents has frequent access.” In Lamonte, the court concluded by stating: “At the risk of falling prey to simplistic generalities, we are of the view, that given a choice, we do not see why anyone would select a living arrangement which involved so much movement from house to house.”

Nesting has disadvantages other than economics and should only be considered in certain circumstances where the parents are willing to focus solely on the children outside the divorce process. Joint custody can be sufficient in promoting positive developmental adjustments in children. There is also recent social science research which shows that children are not as negatively affected by divorce as once thought. 1

I suggest that nesting at least be considered as an option in all custody matters. Parents may then focus on minimizing the disruption a separation may have on their children and nesting may achieve a better result than the traditional shared custody arrangement.

1″Is Bird Nesting in the Best Interests of the Children?” Michael Flannery, paper presented October 2008 at the Annual Meeting of The Law and Society, Las Vegas, NV.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.