Understanding Birdnesting Divorce: Our House in the Middle of Divorce

by Houston Divorce Attorney Sam M. “Trey” Yates, III

Children need a home, a familiar place to bring them comfort and safety in times of youthful stress. Home is singular and conjures up a unique image in each person’s mind. Chiseled tile surrounds the breakfast table where the family once gathered for eggs and bacon. A beautiful backyard of green grass, blue pool water, and gray shade blocking the blistering yellow sun. An inviting living room, game room, TV room, entertainment room, a whatever-you-want-to-call-it room where you once relaxed after school and work. Cozy carpet to softly shuffle yourself into bed at the end of the day. The trappings of home help create a calming environment for children and adults alike.

Divorce Destroys Your Family Home

Unfortunately, divorce and the turbulence before it often destroys the idyllic image of home for many families. The quiet tile of yesterday may become an echo chamber of insults and hostility today. The backyard now becomes a crutch to escape the frustration of the indoors rather than the outdoor vacation spot you once envisioned. Living rooms and entertainment rooms become octagons, boxing rings, and arenas for emotional and psychological combat. Even at the end of the day, the cozy carpet now shocks you with words that spark shouting matches before bed. Your family home is now a house where childhood is stolen and family life disintegrates.

When divorcing couples split, two “homes” are created for the child to travel back and forth. Often at the end of divorce litigation, parties are either ordered to sell or agree to sell their marital home and split the proceeds of their community property. The parties then purchase their (most likely downsized) new properties using those proceeds. In some cases, a divorcé opts for a one-bedroom apartment. Here, they will attempt to create a new “home” for themselves and their child.

Depending on the child’s age, their idea of home will always be that first house where they formed their earliest memories. After divorce, the child at the heart of these ex-spouses’ lives becomes a package to be delivered according to a regular schedule. Delivered too late, that’s a violation. Picked up too early, a second violation. Goldilocks is never satisfied and the child loses out on stability and time in transit.

The Birdnesting Divorce Option

An alternative may exist that benefits the child’s well-being. This divorce option creates a singular home for a child, an alternative truly in the child’s best interest. The concept is called “birdnesting” or “nesting,” where the child remains in the original family home and spends time with each parent there. Rather than forcing a child to travel back and forth between separate homes for the next decade or so, the child’s best option may be living permanently in the marital home and requiring the divorcing couple to travel to the child, one parent at a time. The parent currently in possession of the child may remain in the marital residence while the other parent lives in his or her separate apartment. When it is the second parent’s time with the child, that parent lives in the marital home while the first parent lives in their second residence. Meanwhile, the child enjoys the comfort and stability of the same house, the home they have known their whole life.

The Benefits of a Nesting Plan for Divorcing Parents

A Nesting Arrangement Helps Create A Stable Home For Children

An analysis of the Holley v. Adams best interest factors suggests that remaining in the marital home is better than traveling between two homes. First and foremost, children most likely desire to remain in the marital home where they grew up, near their friends and school. Secondly and relatedly, the child’s emotional needs crave familiarity to escape the instability of divorce. Home can be that familiar place where the child feels safe and can emotionally grow with each parent individually. A third factor to consider here is “the stability of the home or proposed placement.” This factor directly targets the child’s living situation. Maintaining the family residence increases the stability of the child. With each parent visiting the house separately, hostile interactions between parents decrease, and the stability of the home and the child’s well-being increase. Over the long term, nesting increases a child’s mental health, maintains positive perspectives on his or her surroundings, and builds positive relationships individually with each parent. For some children and financially stable families, nesting is in the child’s best interest.

Nesting Plans Help Divorced Parents Communicate Effectively

This alternative may ease many of the common stresses associated with co-parenting, such as visitation schedules and fights over education that many divorcing parents experience. Most violations seen in enforcement cases involve parents who fail to bring the child to a certain location at the correct time. Further, educational disputes often center on which parent’s new home provides the best educational opportunities for the child. Perhaps it can be assumed that when the parents were happily married, they decided on their marital home in part because of their happiness with the local schools the child would attend. If the marital home remains the child’s only home, then timing issues, zoning disputes, and other post-divorce arguments may decrease or disappear entirely. Divorced parents considering a nesting arrangement in their family home should create a parenting plan to further reduce tension. A parenting plan should address issues like how children will spend time on holidays and who will make decisions regarding the child’s education, health, extracurricular activities, household chores, and religious upbringing.

Financial Considerations of A Nesting Arrangement

This alternative may benefit wealthier families and leave poorer families unable to take advantage of nesting benefits. The alternative of keeping the marital residence for the child’s best interest may lead to three homes for the family: parent one’s house, parent two’s house, and the marital residence for the child and visiting parent. With rising housing costs and rental payments, the idea of owning multiple homes may be more fantasy than reality. Further, divorced parents of all incomes often sell the marital home to pay for legal fees and added expenses incurred by living on one stream of income. Added financial stress may cause other emotional problems between parents and their children. The financial makeup of the parties remains essential to the success of nesting post-divorce.

However, some of the financial stresses may be offset in other ways. With collaborative parenting using one roof, the goal is for parents to engage in fewer legal battles over possession and access violations and to co-parent in an emotionally and financially sound manner. A singular “neutral” house from which geographic restrictions and educational decisions stem should prevent future modification battles as well.  Practically, fewer car rides for parents and children alike will save money and time on the road. Last, decreased stress with fewer “beating the clock” scenarios may make for a happier post-divorce familial environment for everyone’s mental health benefit. As with any potential system for raising children after divorce, positives and negatives exist on both sides and require careful consideration for each family and client’s situation.

Is Birdnesting Divorce Right For Your Family?

Maintaining the marital home for the benefit of the child should be considered more heavily by Texas courts. Even if underutilized by court order, parties, and their advocates should explore nesting as a viable alternative during mediation and settlement agreements with their family law partner. The benefits of one house for a child to call home — one protected nest — and an emphasis on having the parents travel to the child rather than act as chauffeurs will be healthier for all involved.

A child in a comfortable and stable environment makes a happier and healthier individual who will develop into a happy and healthy adult. For some Texas families, nesting in the original family home may serve the child’s best interest and salvage necessary stability in a young child’s life.