What is Bird Nest Custody and how does it benefit the children?

Answer 1

BIRD NEST CUSTODY

It's a form of access or custody where the children stay in the former family residence and it is the parents who rotate in and out separately and on a negotiated schedule.

The children simply live at "home" and the separated or divorced parents take turns living with them there, but never at the same time.

The core element of this arrangement is that each parent maintains a separate residence where they live when it is not their turn at the "bird's nest". When one parent arrives for his/her designated time, the other vacates right away, so as to minimize or eliminate the presence of both at the same time. The separate residence could be a rented room, staying with friends or relatives, or the parents could share the cost of renting a two bedroom apartment, with each having a secured bedroom.

Bird Nest access will be coupled with specified access of the other parent, one evening a week, for dinner or other activity. The In-Residence-Parent doesn't date, including lunch and after work drinks, or have a S/O stay overnight.

Sometimes, this form of access or custody will end when the youngest child reaches the age of majority at which time, one parent either buys the other out of their interest, if any, in the former family residence, or it is sold and the proceeds divided pursuant to the matrimonial property regime or separation agreement.

The concept is somewhat novel and appears to have as its origin a Virginia case Lamont v Lamont.

In Canada, Greenough v Greenough was a ground-breaker case in that the Court implemented a bird's nest custody order even though it had not been asked for by either party. Justice Quinn, in Greenough stated:

"In Lamont ... the court made a bird's nest custody arrangement in which the children (aged 3 and 5 years) remained in the home, with the mother staying in the home during the week and the father on the weekend. I think that the benefits of a bird's nest order 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 I have seen cases (and this is one) where the children are being treated as Frisbees. In general, parents do not seem to appreciate the gross disruption to which children are subjected where one of the parents has frequent access. In this regard, I do not believe there must be evidence that the children are suffering before the court is free to act. To me, it is a matter of common sense. At the risk of falling prey to simplistic generalities, I am of the view that, given a choice, I do not see why anyone would select a living arrangement which involved so much movement from house to house."

The primary argument against this form of custody is that parents cannot be expected to give up any possible future romantic involvements, as well as having more children, for this. But, why not?

Had the marriage, or even cohabitation, remained intact, this would have been the price paid for the children. Are the children any less important just because the parents failed in area of family? They deserve parents putting them first over all else. They are the contribution we are making to the future of our society. Shouldn't that contribution be the very best?

• Lamont v Lamont 2000 Va. App. LEXIS 434 (Court of Appeals of Virginia)
• Greenough v. Greenough 2003 CanLII 2363 (Ontario), see link

Clarification

In the United States "Bird Nest Custody" was the result of a ruling in Virginia more than 20 years ago. It is still not commonly known, not commonly used and is not part of any federal or state custody laws. It was the ruling in Lamont v Lamont. It's has been used by a couple of celebrities but few people would have the resources to carry out such a plan. There is a reason it never "caught on": It's expensive and impractical in most cases. Most divorced families in this age are struggling just to make ends meet. They hardly have the resources to indulge in the bird nest concept.