Putting children's needs first when getting a divorce

‘Bird’s Nest Custody’ seeks to put the needs of children first when their parents are separating or divorcing, writes Ken Phelan

One of the more unsettling aspects of separation or divorce is the impact they have on children; children are left confused, rejected and often have to choose allegiance between embittered parties. In 2014, there were over 2,600 divorces granted by the Circuit Court and High Court, with the number of separations undocumented.

Traditional modes of separation or divorce arguably offer little protection for the welfare of the child; separations are typically acrimonious by nature, and tend to lead to legal disputes, custody battles and apportioned blame, all while children look helplessly on.

With separations, both parents may vie for custody, to be sole or principal guardian of children who simply crave reassurance in a deeply unsettling time. Children may find themselves caught between homes, torn between parents and perhaps wondering if the separation is all their fault. In the throes of legal argument, sometimes the needs of children are simply lost.

Putting children's needs first when getting a divorce

One novel approach to separation and divorce has recently emerged from the US, which places the needs of the child explicitly at the forefront of dispute. So-called ‘Bird’s Nest Custody’ offers a unique solution to both the custody of children and their preferred residence.

Under Bird’s Nest Custody, parents take ‘turns’ occupying the family home while the children remain settled; for example, mom might stay in the house one week, then dad moves in for the following week, each taking turns to look after the welfare of the children. On the days or weeks not in the family home, parents may for example stay in a rented apartment or with relatives.

From the outset, this would appear highly disruptive and inconvenient for parents. But therein lies the point — children remain in the family home and are not disrupted, with upheaval and upset kept to the minimum. They simply see mom and dad co-operating in taking turns to look after them.

The agreement, then, requires a degree of self-sacrifice on the part of parents, while it is ultimately the children who prosper.

Kate Banerjee who works with UK law firm Jones Myers explains the process: “Bird’s Nest Custody is an arrangement between a couple where they attempt to minimise disruption to children in the event of divorce or separation. Both parents share the residence and also share responsibilities with regards to the children.

The advantage of this type of arrangement is that the children get to stay in the family home — they remain settled, they’ve got their own bedrooms, their pets, their friends, and their school is nearby. So, when children think their world is going to fall apart when Mom and Dad announce they’re going to separate, things are kept as calm and as normal as possible and in the routine the children are used to.” In 2003 in a landmark case in Canada, ‘Greenough v Greenough’, the Ontario Superior Court of Justice mandated Bird’s Nest Custody for a couple, even though it hadn’t been asked for by either party. The judge had become concerned at the effect the protracted divorce and custody battle was having on the couple’s children and issued what he termed a “Bird’s Nest order”. UK courts have not mandated Bird’s Nest Custody as yet, though it does come up during mediation.

Although Kate Banerjee is unaware of any Irish cases, it is perhaps only a matter of time for the arrangement to be implemented here. The positive thing about Bird’s Nest Custody — leaving the US aside — is that it is not mandated by court. Therefore, from the outset, it requires full co-operation between couples and is entered into willingly by both parties. If couples are co-operating, though, why should they require legal assistance?

“People can work things out for themselves and don’t need to go near lawyers, but I think the right kind of lawyer who is supportive and understanding can help couples think through the pros and cons of such an arrangement and maybe lay down some ground rules.

These can be practical details such as maintenance of the home, who picks the children up, doctors’ appointments, if new partners are allowed to stay in the house, etc. It’s helpful to think through some of these issues either with a lawyer or a mediator, so that if things crop up there are rules in place.” Obviously, Bird’s Nest Custody is not without its difficulties, and will not suit many couples. So-called ‘high-conflict’ couples would perhaps be advised not to enter such an agreement, since it would in all probability prove unworkable.

Divorce and separation are generally not amicable affairs and hold at least a degree of animosity, so that sharing a home with an ex-partner may be untenable. For many, the arrangement would appear fraught with difficulties, with only the most compromising of couples being able to make it a success: “The difficulties involved with Bird’s Nest Custody are having to be like-minded about a way forward, having to deal with the practicalities of maybe sharing a bedroom with an ex-partner and being in a financial position to be able to facilitate such an arrangement. It can’t be a situation where an agreement is made and then you never talk again, because if you’re in this type of relationship you have to be able to communicate.

Putting children's needs first when getting a divorce

The advantage of Bird’s Nest Custody is that you’re working together for a cause — you’re trying to keep the children in the house and are united in trying to achieve that. The biggest factor has to be the children — the impact of the divorce or separation is lessened, the children’s practical situation remains the same and they see their parents communicating.” Given the many difficulties involved, what advice would Kate give to couples considering the arrangement?

“I would think long and hard about it, think of all the ramifications. I’d speak to either a mediator or a lawyer, just to make sure that you’re protected and that there aren’t any reasons why you would be disadvantaged by the scenario. Every case is different, so it’s important to tease out the pros and cons. These arrangements are typically driven by the desire to meet the children’s needs, but sometimes parents are naïve about the long-term implications.

“This type of arrangement simply cannot happen if parents don’t communicate well or there is any prospect of raised voices or unpleasantness in front of the children. All that does is prolong any disharmony, and of course the children are in the middle of it all.”

While perhaps not suited to many couples, Bird’s Nest Custody does offer a viable alternative to parents who are going through divorce or separation. With all the turmoil and emotional anguish involved in breakups, Bird’s Nest Custody addresses one often overlooked concern — the welfare of children.

It helps children navigate through a very difficult and emotional time in their lives. For too many children, the effects of divorce or separation can be devastating — Bird’s Nest Custody minimises these effects and helps maintain a degree of normality, even if parents are being torn apart:

“All the cases of Bird’s Nest custody I know of have been successful; when it works, it works really well because both parties are very open and willing to co-operate. With these arrangements, children see their parents communicate and co-operate which is very important.

Any child in the middle of a divorce situation, if you ask them what their number one wish would be, it’s that Mom and Dad get back together. That’s probably not going to happen, but what Bird’s Nest Custody does is show a united front, and I think that’s hugely comforting for children.”


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