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Nesting Custody - Birds Nesting

Nesting Custody – Is It For The Birds?


You open the door on Friday. It’s been a long week since last Friday, since you last had parenting time, but it’s your week now and things will be better. Especially since it’s “your” week in the house, instead of that one-bedroom studio you keep for your “off-weeks,” where loneliness is compounded by the monotone stucco walls. The excitement of being “home” quickly disappears as you realize that your shit-bag ex has done it again.

There’s a stack of unwashed dishes in the sink; at least three nights’ worth. You lug your weekly bags down the hall. Part of the reason for this arrangement was so that Jack could keep all his baseball and Scouting equipment in one place, but now you’re feeling like a seasoned business traveler, schlepping all you own around in two roller bags and a carryon. Most times you don’t even unpack at the studio.

When you get to the bedroom, you realize not only has he not washed and changed the sheets, but he hasn’t even made the bed. Wonder if he’s still having “The Upgrade”, as he callously calls her, over to this house. The judge told him to not, but she could’ve come in after Jack was asleep. That’ll be a restful thought, you think, while trying to sleep in that bed tonight – unwashed, since Jack must be picked up from baseball in 20 minutes.

Maybe you’ll comfort yourself with a frozen treat you bought last time you were here. Rage flows, though, as you notice that the empty Häagen-Dazs carton atop the trash that, once again, hasn’t been taken out. Instead, maybe a couple glasses of wine before bed will quell the fury. Better keep it to two, though. There’s that lingering thought that he’s counting the bottles once again; going through the trash to build a custody modification case. Hell, at least if there were a modification, maybe the judge would put an end to this “nesting” shit.

Over the past few years, parties going through a custody battle have become increasingly curious about “nesting” or “bird-nesting” arrangements. The concept is simple. Instead of the children going back and forth between mom’s house and dad’s house, the parents rotate in and out of a single house where the children stay 100% of the time.
There are couples who make this work. Countless accounts can be found on the internet extolling the virtues of this arrangement and how it greatly reduced the stress on the children, knowing they were always going to be in the same place.

This takes a unique couple, though, and it’s unlikely to work for most. Couples who make nesting arrangements work could have made any custody plan work. Hell, they could make it work without a custody plan. They co-parent well together. They abide by rules and extend common courtesies. The switch weekends with ease. They attend parent-teacher conferences without making teachers feel awkward. They want to continue parenting well together – just apart.

For the other 99% of divorcing couples, nesting custody arrangements are going to be a disaster. I’m convinced the nomenclature comes not from ornithology, but because it would take a dodo or a cock to conceive such an idea.

The only purported benefit of a nesting arrangement is that the children get to stay in the same place. They know they are always at “home” and this provides some semblance of consistency and normalcy in a time of upheaval and uncertainty.

Granted, any benefit to children going through a divorce is enormous and worth considering. Research has shown, however, that it’s not necessarily the divorce itself that wreaks havoc on children, but the level of animosity and discord between the parents. Paramount in considering a nesting custody arrangement is whether parental conflict will be alleviated or exacerbated by the arrangement. Moreover, as prior generations are experiencing grief for allowing their children to “rule the roost”, it’s questionable whether it’s advisable to indulge and coddle children, telling them that “this is your house and mommy and daddy will come visit.”

The extent of any purported benefit is also going to depend heavily on the age of the children. If a twelve-year-old can’t remember who’s house they’re at from week to week and can’t remember to bring their soccer equipment to dad’s house, there are bigger fish to fry than the custody arrangement.

As a family law attorney, I must anticipate the pitfalls of any agreement and prepare for the worst. In my experience, the fewer ties-that-bind that remain after a divorce, the better. Maintaining a joint household after a divorce has the potential to turn into a mine field.

First, there are the mechanics of running a household. How will bills be paid? Will there be arguments over the water bill because one party showers twice a day and the other only once. What about routine repairs and maintenance? Who vacuums? How often? What about toilet paper? Grocery shopping? Simple things like taking out the trash, changing light bulbs, and emptying the dishwasher can become battlegrounds. College was fun, but having a derelict roommate who allows scum to line the shower, lets pizza boxes to pile up, and eats your “comfort desserts” is less tolerable in adulthood – especially when that roommate is someone you used to fuck. These things may sound petty, but in the world of high-conflict custody and divorce, pettiness knows no bounds.

Also, you can very well kiss your privacy goodbye. Mail may get opened “accidentally.”  If you’re not going to lug a weeks’ worth of things back-and-worth between residences, then half your possessions–your intimates–will be lying around, ripe for rifle. In most states, video recording in households is permissible for “security and surveillance” purposes. It wouldn’t be that difficult to convince a judge that hidden cameras in the household were for nanny monitoring or burglary surveillance. This greater access to evidence and reduction of privacy makes evidence gathering easy for any potential custody modification.

To really get a bon-fire going, throw the gasoline of new significant others on to this stoked ember. What will the reaction be when The Upgrade’s panties are “accidentally” placed in your drawer? Assuming there aren’t extra bedrooms, is your ex going to be fine sleeping in the same bed where his replacement is performing his best Ron Jeremy impression during your weeks?

An easy solution would be to just ban significant others from the shared house. I’m sure future suitors won’t mind being ignored for a week at a time.

All of this is to stay nothing about the finances of such an arrangement. Proponents have touted the reduced cost of the child only needing one set of everything – one bed, one dresser, one wardrobe, etc. – instead of one at mom’s house and one at dad’s. This ignores that now two people, mom and dad, need two sets of everything.

That meager income that barely supported one household is now going to have to support three: the shared house, mom’s house, and dad’s house. Some proponents have advocated reducing this cost by sharing two households – one where the child stays and one where the “off-week” parent stays. This only doubles the potential problems outlined above, as now you’re sharing two houses.

I’ve also seen people reduce the expenses by keeping meager accommodations for their “off-week” house. Personally, I don’t think I would want a one-bedroom depression-den to wallow in while I’m away from my children, fresh off a divorce.

Lastly are the legal ramifications of maintaining a household after you divorce. Clean breaks are preferable in divorce. The fewer ties between acrimonious parties mean fewer things to fight over and fewer things that could go wrong. Pushing off the sale of the house to another day means dozens of moving parts that must be accounted for in the settlement. Then there are the extreme contingencies: What if the house burns down? Who deals with the insurance? Do you buy a new “shared” house? What’s the acceptable purchase price? Who gets to select the realtor? What if someone is injured on the property and sues?

Most importantly, for alimony to be deductible, the payor and payee must be living in separate households. Sharing a household, even if not physically present in the household at the same time, may affect the tax treatment of alimony.

If you still think a nesting custody arrangement can work for your family, try it out first.  Test it out on a temporary basis, while the case is pending. See how the mechanics and finances operate. See how the children respond and feel about the nesting arrangement. Find out if everyone follows the “house” rules. Find out on a temporary basis, before you commit to the unknown.

As I mentioned, the parents for whom a nesting custody arrangement could work would likely thrive without any parenting plan or custody order whatsoever. They stick their divorce papers in a drawer and only consult them for guidance if all else fails. Nevertheless, it’s important to have fail-safes in place.

Every obligation should be specific and well defined. For example, impose a rule that requires each party to clean the house before vacating after their custody time. Make clear who’s responsible for maintenance and repairs. Set out the grocery protocol. Make guidelines for significant others. Define the laundry policy.

Another helpful tip is to create a joint, household checking account. Each party would be required to put a certain amount in the account each month, which would then be applied toward the mortgage, utilities, light-bulbs, laundry detergent – any agreed upon or sensible expenses. This makes it much easier to prove non-compliance on the financial side. Instead of having to track who paid what bill, you’re simply looking at one account statement identifying each party’s deposits.

Going a step further, mechanisms of enforcement – teeth, if you will – should be built into the agreement. When a party fails to comply with a divorce order, the usual remedy is filing a contempt against the party in non-compliance.  The remedy with financial contempts (e.g. the failure to pay child support or alimony) is simple – pay the money that’s owed. With non-financial contempt, the remedy is more complex. What’s the penalty or remedy for violating a prohibition on overnight guests or for failing to wash dishes? A judge isn’t going to fine someone or throw them in jail on their own volition. In most instances, the punishment is going to be a slap on the hand; one that you had to pay attorney’s fees and filing fees in the thousands of dollars to obtain.

A better solution would be to build in teeth to any agreement.  Impose a penalty of say $100 if the house hasn’t been cleaned. Failing to take out the garbage – $40 a pop. A repair goes unfinished, the other party gets to select a handy-man to do the job and gets paid back. The Upgrade impermissibly sleeps over, the other party gets an extra week of parenting time.

Nesting custody arrangements are possible, but whether they’re practical largely depends on the parents. Judges won’t award this type of custody unless both parents agree. If both parties are sane, rational co-parents with the means and ability to make nesting custody work, they could likely make any custody arrangement work. Their children, as well, would likely overcome and adapt healthily to any custody situation. For the other 98% of parents, nesting is simply further fodder for a post-divorce turf-war.

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