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Nesting: Are pendente lite custody battles going to the birds?

Parents often can’t wait for their children to “flee the nest.” But, in an emerging form of temporary child custody and visitation planning, the roles are reversed—the children stay in the nest and the divorcing parents, at alternate times, leave.

“Nesting” — the concept of a shared temporary residence with visitation in the residence — has infrequently been a subject of judicial intervention nationwide and only cited once in New York. But the use of this device, even as a temporary resolution, in disputed custody/residence cases holds some prospects for success for practitioners.

The concept recognizes the importance of the marital residence to the children. Under the concept, the children remain in the marital residence, living in their own bedrooms, sharing meals at the same table, attending the same schools and continuing that locus for friends and family. The parents move in and out of the home on an agreed schedule.

The nesting concept is most effective when used pendente lite. It avoids the almost immediate squabble over “which parent gets the house” or “who gets to stay in the house” during the divorce proceeding. In nesting, neither parent “gets” the house during the pendency — they share it.

Judicial analysis of the nesting concept, even on temporary basis, is divided.

In New York, nesting has only once been the subject of judicial comment. In A. L. v R. D., 46 Misc. 3d 1221(A)(Sup.Ct. New York Cty 2015), a lower court approved, apparently over a therapist’s objections and after a 16-day trial, that a nesting arrangement — alternating weeks with each parent in the marital residence — was in the children’s best interest.1

Other states reflect sharply divided opinions, even though the courts uniformly apply a “best interests” analysis. In Carmen v. Carmen, 2014 Pa. Super. Unpub. LEXIS 2716 (Sup.Ct. Pa. 2014), the court cited, with apparent approval, an alternating week on/week off nesting arrangement that lasted for three years. However, in a reminder to nesting advocates, the Court still had to wrestle with support issues that cropped up during the arrangement. This decision suggests that if a deviation in child support is occasioned by the nesting arrangement, it should be carefully spelled out in an agreement or order.

Practitioners should realize that a nesting arrangement does not eliminate the dangers of a high conflict environment, caused by a parent’s behavior. In Grass v. Grass, 2014 Ohio Misc. LEXIS 3154, p.2, n.1 (Common Pleas Union Cty 2014), a parent argued for an alternating weekend nesting arrangement in the marital residence. The Court held that this request for an alternating week nesting plan was not supported by the evidence because “in a high conflict case such as the present case appears to be, suspicion and resentment cause far more harm than any anticipated benefit to the children.”

Similar judicial suspicions of nesting coalesce in other states. In Key v. Key, 2012 Conn. Super. LEXIS 2347 (Superior Ct. New London 2012), a father sought to end a nesting arrangement and acquire exclusive possession of the marital residence. The Court had good news and bad news for the husband: it concluded that the bird nesting plan was not working well and that husband acquired exclusive possession but at a cost: his wife received alimony, child support and a property settlement sufficient for her to be independent when supplemented by her own earnings.

The decision in Key v. Key highlights one of the compelling arguments against the nesting arrangement: it most often is a temporary, stopgap measure that delays difficult final decisions for a couple. Because under New York law, a complete resolution of all equitable distribution and support matters must attend a judgment under Section 170(7) of the DRL, the nesting option may only be practical pendente lite.

In re Marriage of Levinson, 975 N.E.2d 270 (App.Ct. Ill. 1st Dist. 2012), provides a glimpse of a professional view of the pro and cons of a nesting arrangement. A parent sought to discontinue a 15-month-long nesting arrangement, arguing that there were tensions for both parent and child when transitions occurred. A court-appointed therapist testified that the benefits to the children included: . . . from their perspective, they’re in one location, not packing a little bag, going back and forth. From their perspective, life is consistent. The only thing that changes is mom’s there sometime, dad’s there at other times.

The expert however conceded that the nesting arrangement, whatever its benefits, was not in the children’s best interest long term. However, applying Illinois law, the Court declined to terminate the nesting arrangement, finding that despite the tensions, the wife was not entitled to exclusive use of the residence.

Some states more broadly embrace the nesting notion as temporary compromise for custody questions. See In re GRAHAM, 2007 Cal. App. Unpub. LEXIS 3242 (Ct. App. 1s Dsit 2007) (temporary pendente lite nesting arrangement cited with approval even though evidence of substantial parental discord); J.C. v. B.S.C., 2006 Del. Fam. Ct. LEXIS 208 (Fam Ct. Del. 2006) (nesting arrangement ordered until house is sold despite parental objections).

In other cases, the “best interests” even trumps parental objections or evidence of continuing parental conflict. In Parker v. Parker, 2017 Md. App. LEXIS 536 (Ct. Sp. Apps. Md. 2017), the court approved a nesting arrangement until the children had graduated from high school, even though the parents fought over the method of supporting the children in the house. See also Gallagher v. Murphy, 2009 Mass. App. Unpub. LEXIS 1222 (App. Ct. Mass 2009) (approval of nesting arrangement even though some evidence of lack of cooperation between the parents).2

In all of these instances, the preference of children to remain in the residence has a substantial impact on judicial decision-making. In short, if the children want to stay and have their parents move, the prospect for judicial approval of the nesting plan is enhanced.

But a continuing high level of parental discord discourages courts from approving nesting arrangements. For example, in J.M. v. T.C., 2017 Pa. Dist. & Cnty. Dec. LEXIS 2475 (Com. Pleas Ct. Montgomery Cty 2017), the court declined to permit a nesting arrangement because the children opposed that plan and other behaviors by the father supported the conclusion that it was not in the children’s best interest; see also Disabella v. Disabella, 2011 Conn. Super. LEXIS 1080 (Sup.Ct. Hartford 2011) (high level of continuing parental conflict caused court to discontinue nesting arrangement); Fuhrman v. Fuhrman, 254 N.W.2d 97 (N.D. 1977) (nesting arrangement, based on month-to-month rotation unworkable as the parents are unable to cooperate); In the Interest of S.M.H., 531 So.2d 228 (Fla. 1st DCA 1988) (rotation of the physical residence of children is presumptively not in their best interest and . . . rotation of estranged and hostile parents into and out of the same home on a monthly basis does not provide the stable home environment).

Nesting is not without its complications: financial and otherwise. Parents need to pay the marital residence costs and find other accommodations, which introduce new expenses to the couple. As one commentator noted:

[Nesting] may provide a stable situation for the children, but is ripe with misunderstandings for the adults. Specific guidelines need to be established in the beginning for practical issues such as who the food in the refrigerator or pantry belongs to, who does the dishes and cleans up and who does the children’s laundry. Although nesting sounds like a good idea, it has its own problems and should rarely be utilized for more than on a very temporary basis. ESSAY: THE SWAMPS OF HOME: A RECONSTRUCTION OF THE PARENT-CHILD RELATIONSHIP, 26 U. Tol. L. Rev. 805, n. 46 (1995).

In short, nesting is not a long-term solution to parental custody matters but, it may, with a high level of parental cooperation, provide the children with continuity and stability during a time when their lives are buffeted by their parent’s pending divorce. Mature parents, guided by well-drafted temporary agreements or orders, may find that nesting partly soothes their children’s anxieties and serves the family’s best interests.

Richard A. Dollinger is a member of the New York Court of Claims and an acting Supreme Court Justice in Monroe County. He is the acting Supervisor of the Matrimonial Part in the 7th Judicial District. Jessica Manhardt is a senior at Nazareth College in Rochester contemplating a career in the law.

1 The reason for the lack of judicial comment in New York may be that a temporary order for nesting is subject to the usual rule that the remedy for a temporary custody order is an immediate trial. Skitzki v Neal, 149 A.D.3d 1604 (4th Dept 2017); Matter of Tina X. v John X, 134 A.D.3d 1174 (3d Dept 2015).

2 See also Metsker v. Metsker, 2016 Ohio Misc. LEXIS 14627 (Com. Pleas Wayne Cty 2016) (“nesting” arrangement approved by the Court); Roth v. Roth, 2015 Mich. App. LEXIS 64 (Ct. Apps. 2015) (citing with approval a lower court-ordered temporary “nesting arrangement”); Wilson v. Wilson, 2011 Mich. App. LEXIS 1118 (Ct. Apps. Mich 2011) (equal custody and bird-nesting arrangement upheld on appeal).