Divorce & Nesting: Is Nesting Best?

In this blog, FLiP Director James Pirrie discusses the concept of nesting and whether the model works for separating/divorcing parents. James identifies the circumstances in which a nesting arrangement may work particularly well as well as highlighting some possible risk factors. 

Families come in all shapes and sizes.  They have myriad different needs.  Little surprise therefore that as family lawyers we need a whole range of suggestions for the best way forward.  Sometimes it is all about sizing up parents’ resistance to options, because it is in the way that parents dismiss these first-glance solutions that we can begin to form an idea of the solution that may work.

‘Nesting’ is one such option: where parents take turns providing continuity of care to their children who remain living in one home. (Rather than the children moving between two homes, it is the parents who move in and out).  It generates pretty passionate debates between family law professionals, some of whom treat it as the option to be avoided at all costs.  They are undoubtedly right for some families. Nesting could be a terrible solution for some, but for others it is a realistic option, at least for a short period, whilst the dust settles or to provide a transition.

Now with Justin and Sophie Trudeau providing a model “nesting” structure, has it become a topic of conversation and for some, the new standard that parents must make work or feel guilty if they don’t try?

The realities, however, are that nesting is going to work best for those parents who are highly aligned, who have pretty congruent family and other values, and where there is a broad equality of bargaining power: in short the sort of couples about whom friends might say “I don’t really know why they need to get divorced” or who might say to each other “we’re getting on better now than we ever did when we were together.”  Having really significant resources to smooth over difficulties and provide cleaners and so on helps no-end too!

You can immediately see the benefits for children of a nesting structure:

• continuity in the same home
• all of their clothes and things in one place
• friends know where their home is – potentially the avoidance of shame around the family separation
• none of that to-and-fro and not having the needed thing with you and so on
• a sense of being properly at the centre of their parents world.

And then you think about the parents:

• Are the children too much the centre? (Who thought there could be such a thing but) is this a situation where the parents’ lives are squeezed to the sides of the family’s existence and in effect put on hold for the convenience of children (who actually would cope fine with sensibly worked out two-home arrangements?)
• Isn’t there a risk that the parents lives become dominated by this regime? They don’t move on.  They don’t form new relationships.  Children therefore are denied the experience of those new role-models, seeing their parents settled into new lives and reassured by their well-being.
• And then in some situations, nesting becomes properly the vehicle for ongoing coercion and control.

In A, B & C (Children: Nesting Arrangement) [2022] EWCA Civ 68, the Court of Appeal ultimately approved of this comment by the first instance judge: “My primary focus is the children and I am clear that the nesting arrangement has significantly overextended beyond the time that it has been helpful to the children. It has with it a number of drawbacks. In my judgment, it gives false promises to the children as to the reality of their parents’ separation. It deprives the children of spending quality time with their mother in the new home that she has established. It seems to me that to expect the mother to see the children away from her home directly impinges on her ability to be as good a mother to them as she possibly can be. It is not right that … these children should continue to be spending all their time at the family home, which was once their parents’ home but is now the father’s, and is simply what is left after the parents’ marriage has long since come to an end.”

At FLiP we have created a template agreement that provides a framework for the basic nesting scheme  – including the ground rules for behaviours in each home – but it is NOT an off the peg model.  It will need a lot of nips and tucks before it would work for anyone and before then there would be some serious questions around: “Do you really think that this is going to work for you all?  Is this absolutely the best that we can do against all these alternatives…?”  and probably those conversations are needed with the children too.

And it will need this tailoring because ultimately what is going to be needed is some properly joined up thinking:

• Yes, there is the practical-legal dimension where the arrangements are set out in a legal document where the intent and commitment is clear and with our template agreement we can manage that work relatively efficiently.
• But much more important, will be the work in managing the “relationship” aspects of the arrangement – “Assuming that we do get all the commas and numbering right, have we actually ended up with a structure that is going to work for everyone?”

There are many pros and cons to nesting and many of the considerations are not confined to the legal and practical arrangements. At FLiP we pride ourselves in providing an holistic client focused approach. As such we have an in-house team of Divorce Consultants & Relationship Therapists who have a depth and breadth of experience in working with all aspects of separation.

Andrew Pearce, a Divorce Consultant and Individual & Relationship Therapist at FLiP comments: “Nesting poses a number of challenges to be weighed up before deciding how best to proceed. Family and friends will often have strong opinions on this and other topics. My colleague Jo Harrison and I offer a neutral and objective space to be able to “think out loud” about the best solution for you, your ex-partner and children. Nesting can be a useful stepping stone but there are also many potential longer term factors to be considered”.

Separation is a time when change takes place.  It is an opportunity to put in place structures that can provide each family member with a safe and meaningful future full of opportunity – ideally building on the good bits of the family life together that came before the separation.  Parents, as decision makers, need to be careful to avoid choosing arrangements that are motivated by avoiding what seems distasteful, or by trying to live up to what seemed best for others, for example the Trudeaus, or which permits the continuation of an unhealthy relationship between the couple.

As we said at the start of this blog, families come in all shapes and sizes and what is “best” for one family may be a straight-jacket for others.  Parents need to bring their best selves and access the best possible support to build what will work best for them.

If you are considering a nesting arrangement we encourage you to talk with one of our team of Divorce Consultants and Individual & Relationship Therapists, alongside your legal team, in order to fully consider all aspects. Find out more here.