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Overview of Bird’s Nest Custody


Many people are familiar with the most basic types of custody arrangements in divorce, separation, and paternity cases. They likely have some basic concept of joint custody, sole custody, and shared custody. What they probably are unfamiliar with is a fairly new custodial concept known as bird’s nest custody. With that in mind, there are some basic facts and factors important to understand about bird’s nest custody:

  • Basic definition of bird’s nest custody
  • Bird’s nest custody and the best interests of a child
  • Enhanced stability for a child
  • Challenges if a parent has a new relationship

Basic Definition of Bird’s Nest Custody

Bird’s nest custody is an arrangement in which the child or children always reside in the same residence during and after a divorce of legal separation. Each parent takes turns staying in that residence with the minor child, a process oftentimes referred to as “bird nesting.” Bird’s nest custody differs from more traditional schemes where the child shuttles back and forth between the two residences maintained by the parents.

Bird’s nest custody is a fairly new concept when it comes to divorce, legal separation, and paternity cases. It originated from a decision by a judge in the commonwealth of Virginia who found the more traditional custody arrangements to be insufficient in a case before him. Since he made that initial decision, bird’s nest visitation has increasingly become more widely used in states across the country.

Bird’s Nest Custody and the Best Interests of a Child

A consideration of whether or not bird’s nest custody is appropriate in a particular case involves the application of the best interests of a child. The best interests of a child is the standard used by courts in all U.S. jurisdictions when decisions need to be made in regard to custody and parenting time.

In determining whether bird’s nest custody is in the best interests of a child, a court examines the particular facts and circumstances of a divorce, legal separation, or paternity case. The focus is on a child’s welfare, with the particular desires of each parent being secondary considerations.

Enhanced Stability for a Child

When it comes to the matter of the best interests of a child, one point needs special attention. A primary benefit of bird’s nest custody is that it oftentimes enhances stability for a child.

In divorce and separation settings, a primary concern among child development and welfare professionals is maintaining stability for that young person. Many of these same experts maintain that bird’s nest custody has the very real potential of enhancing stability for children.

First and foremost, a child is not being shuttled from one house to another. The child has a solid home base and the parents come to him or her.

Second, a child can maintain consistent contact with friends. The connection with peers is considered highly important generally for young people, and particularly so for children in a divorce setting.

Third, as a general rule, bird’s nest custody makes school related activities easier for a child to access. Oftentimes, only one parent lives in relatively close proximity to a child’s school, which can be problematic at least to some degree when it comes to consistency with school programming and activities.

Challenges if a Parent has a New Relationship

Bird’s nest custody can prove problematic in some instances when a parent establishes a new primary relationship. For example, if a parent remarries, that new spouse is going to need to be on board with the practices associated with bird’s nest visitation. The new spouse is going to need to be accepting of the idea that the parent involved in a bird’s nest custody arrangement will be out of the home and at the child’s residence with regularity.

This scenario can prove particularly challenging when a parent not only remarries but begins raising a family with the new spouse. Indeed, that type of situation may suggest the need to reconsider bird’s nest custody in some circumstances.

In the final analysis, when it comes to determining what type of custody arrangement works best in a particular situation, it behooves parents to keep an open mind. Certainly, a more traditional custody arrangement may be in the best interests of a child and work well for a set of parents. Having said that, the particular circumstances of a divorcing or divorced family may warrant a close consideration of the pros and cons of bird’s nest custody. If you have any questions concerning bird’s nest custody, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a consultation.


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