Nesting is a co-parenting technique that is on the rise throughout the country, and U.S. divorce attorneys estimate that more than 10% of all divorces involving children include a bird’s nest custody agreement. With greater awareness of how separation and divorce affect children, experts expect those numbers to continue to rise. It also helps that there are other potential benefits, such as preserving the investment in the home and not being forced to sell it in what may be a buyer’s market.
The concept of birdnesting—often shortened to just nesting—is not new. Such custody agreements have been used at least as far back as the mid-1990s and perhaps earlier. While nesting was relatively novel back then, it is becoming more popular among millennial parents. One major reason for this trend is greater awareness about how separation and divorce affect children. While it’s long been known that divorce is hard on kids, mental health professionals now have an abundance of evidence indicating that children of divorce perform worse in school, suffer from more physical and mental ailments, and often have inferior social skills. Nesting seeks to minimize the disruption to their lives by keeping their family experience as close to what it was as possible, and this is achieved by preserving the family home and having the kids live in it. The parents take turns living in the home based on an agreed-upon schedule.
Data collection and analysis with regard to nesting is still in its relative infancy, so many divorce lawyers believe that we are probably a decade away, at least, from any hard evidence. That said, many experts in the field believe that it is very beneficial for children because it eliminates many of the stressors that they have to deal with. The supporters of nesting include Dr. Ann Gold Buscho, a prominent psychologist who wrote one of the most notable books on the topic. She also employed the method in her own life and has helped many clients set up and carry out nesting plans. According to Dr. Buscho, it preserves the structure of the family and provides the children stability along with a sense of safety and consistency.
Family lawyers note that the vast majority of parents who get divorced want to achieve some form of joint arrangement that protects the children and preserves their parental rights while letting them leave the marriage behind. Nesting not only achieves that but arguably does it better than many other approaches. It ensures minimal contact with the ex-spouse while letting them learn how to solo parent in a comfortable environment. It also often minimizes the financial burden, as it protects the investment in the home, and many divorced couples with a nesting plan opt to get an affordable apartment to accommodate them.
While a prior separation isn’t a requirement for divorce in New Jersey, many couples do choose to initially separate, as it is typically the easiest path to a no-fault divorce. Divorce attorneys generally advise getting a separation agreement. That agreement usually covers child custody, parenting time, and child support and can include the nesting agreement. Psychologists who specialize in this field also advise nesting as soon as the separation occurs, and if the spouses are cooperating in a productive manner, then it is generally recommended that you have all of these details squared away before the separation actually occurs so that the transition is smooth.
Birdnesting experts suggest that there is no single length of time that is too short or too long. Some parents set out to nest for a short period to see if a divorce is what they want, and it isn’t unusual for couples to reconcile and move back into the home together. There are also couples who intend to nest for as long as it is practical, perhaps even to the point that their children are grown and ready to go out on their own.
Experts like Dr. Buscho stress that there is no singular nesting plan that will universally apply to all families. Your family is unique, and the recommendation is that you create a plan that is uniquely suited to it. Your family law attorney can assist with this, and if you need more guidance, there are therapists who specialize in nesting. A therapist can help you plan for it and also serve as a resource to both parents as you actually do it.
Your respective family lawyers can assist you with the functional aspect of your nesting plan. The ideal is that you negotiate all of the points that need to be decided in advance. There can be room for the co-parenting plan to evolve based on the needs of the children, but the nesting plan should be explicit about each parent’s responsibilities, including when they need to be at the family home. Most parents negotiate in good faith, and this kind of planning is strongly encouraged because it allows each parent to enter the situation knowing exactly what to expect and what is expected of them.
Divorce lawyers and family therapists strongly encourage parents to put their plan into a written nesting agreement. That written agreement should include the parenting plan, scheduling, financial responsibilities, and other applicable topics. One common question that comes up regarding nesting is whether it needs to be a legal agreement. It is not required, but this is something you’ll certainly want to speak to your lawyer about. There are advantages and disadvantages to both approaches. A good-faith agreement allows the parents to easily update the nesting plan as needed, whereas a legal agreement gives more recourse should either ex-spouse violate it.
There are certainly some cons to consider when it comes to nesting, and they generally have to do with the financial impact. A traditional divorce provides you a clean break when it comes to your finances, but when you co-own a home with your ex-spouse, those lines are blurred. The blurred lines present challenges if they’re not covered explicitly in the nesting plan, and they can also slow the process of achieving your independence. It also complicates your tax situation, and it can make child support much more complex as well. There is also the issue of privacy. Nesting parents have to take extra care to ensure that their personal information isn’t exposed to the ex-spouse, if that’s a consideration.
If you’re getting separated or divorced and are interested in a bird’s nest custody agreement, Lawrence Law is here to help. We are a family law firm in New Jersey that has handled many divorce cases, including collaborative divorce and divorce mediation, and we can assist you in planning your agreement and submitting it to the court. Call us at 908-645-1000 or contact us online to schedule a consultation with a family law attorney at either our Watchung or Red Bank office.
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