Bird’s nest parenting: innovative custody arrangements

The Independent recently featured an article about “bird’s nest parenting”, a familiar concept in the United States and a buzz phrase which seems to be catching on this side of the pond.

“The kids get the house”

Bird’s nest parenting is thought to have been introduced as a concept in the US around the turn of the millennium, although the arrangement itself has probably been in existence for many more years, just without having been known by any particular term.

The concept involves the children living permanently in one home after their parents’ separation, with the parents themselves splitting their time and taking turns to live in the home with the children.  It is designed to minimise the disruption of a separation for the children. That is the broad premise of the concept, and there are otherwise no specific guidelines about how this arrangement should work, and the details can be fine-tuned to the family’s circumstances.

The concept has recently featured in hit US television series The Affair and Transparent and in the latter programme one family had the concept enforced upon their family by a court.

It is not something that will work for every family, and will require parents to be able to communicate with each other, adapt and be flexible regarding the arrangements. For many separating couples, communication has completely broken down and a lot of work would need to be done, perhaps with the assistance of a family therapist or counsellor, to help the couple get to the point where they are able to communicate well enough to ensure that the arrangement could work effectively.

The arrangement may work well where the needs of the family mean that stability is extremely important, for example if a there is a child in the family with particular needs, such as autism or Asperger’s, where maintaining a familiar, stable environment is vital for their wellbeing.

Making it work

On separation, it is always advisable for a couple to work out their financial arrangements, and draw up a consent order if they are getting divorced, or have a separation agreement.

A court is limited in the orders that it can make, meaning that a consent order can only reflect the basics of an agreement, for example whether the house is to be sold or transferred to one party and when, and whether one party is to pay maintenance to the other and for how long. No order can be made for an unmarried couple on separation (unless there is a dispute about the ownership of a property).

It would seem sensible for bird’s nest parents to have a written agreement covering the more detailed financial and practical aspects of the arrangement, including the use of the property and the arrangements for the children.

Examples of what may need to be considered could include:

•  children’s routines;
• who will pay the mortgage and bills;
• where each parent will live when they are not at the children’s home;
• rules about guests and other people spending time at the property; and
• household standards and cleaning.

This arrangement is not a cheap option and for the average middle income family, it may be unaffordable. It is likely to be a more expensive option if the parents are to operate two additional separate homes, and if the family home is mortgaged, it may be unlikely that the parents can each taken on a separate mortgage for another property. Then there is the question of having sufficient funds to put down a deposit on a further couple of properties. Renting other properties could be seen as money down the drain, and staying with friends or family on the days/weeks when a parent isn’t at the family home is unlikely to be a viable option long-term.

For some families however, who cannot afford to run two homes on separation, they may be left with little alternative than all remaining in the same property and making this arrangement work – for example arranging their time so that parents avoid being in the property at the same time (eg arranging different work patterns and evenings out) and agreeing the times that they will each use different areas of the house and look after the children.

A cuckoo in the nest?

Whilst this arrangement may work well early on post-separation, it is inevitable that both parents will start to move on and may meet someone else. Thought would need to be given about how this would impact on the arrangements – would the other parent be happy with a new partner being brought in to the home?

It is also an unusual, unfamiliar concept for a new partner to feel comfortable with and may add to complications within any new relationship. How would it work if that new partner had children too?

Flying the nest

Thought also needs to be given in advance about what would happen when the children become adults and finish their education. Would the property be sold, and if so, when?

Comment 

We are a long way off this becoming something that a court can or will order in England and Wales, but with more parents wanting and needing to keep cases out of court and avoid ever increasing legal fees, this could become an interesting, viable and creative alternative. This would need to be an affordable option for parents and its success is likely to depend on parents being able to communicate with one another and to have the foresight to agree how the arrangement will work at the outset.

An alternative is a shared care arrangement where the children’s time is split roughly between two separate households, perhaps as a “week on / week off” arrangement, although this will depend on considerations such as the geographical location of the parents in relation to each other and the children’s schools.   Parents would need to ensure a free flow of items between households, such as children’s clothes, books, toys and sports kits.

In any agreement about arrangements for children, their wellbeing should be the foremost consideration. Each family will be different and each child will have different needs. Some will respond well to spending time at different houses, others will thrive better with one base. However important maintaining the status quo for the children is, the long-term practicalities for the parents also need to be considered. Bird’s nest parenting requires a lot of sacrifice on the parents’ part and this in itself may cause difficulties, which in turn could impact on the children and may not be in their best interests in the long run.

Whatever option parents decide is best for their family on separation, it is important that parents receive the right support to help agree arrangements and discuss the practicalities, especially if they find it difficult to do this between them. Assistance can be sought from a family therapist, mediator or solicitor, depending on the issues to be discussed and agreed.

A new Family Law Children Arbitration Scheme is currently in the process of being finalised and due to be launched in July this year. Many parents feel frustrated by the lack of detail contained in orders made by the court. It is hoped that the new arbitration scheme will enable more creative and flexible decisions to be made for families who are unable to reach an agreement, but do not wish to be constrained by the limitations of the court.

In reality, there is no “one size fits all” solution for children and the right arrangements will depend on the family’s circumstances, what is best for the children and how adaptable (or not) they may be to change.