Ruth Cabeza and Imogen Pitts explore the pros and cons of nesting arrangements
11th Mar 2025 | Blog
What are nesting arrangements?
A ‘nesting arrangement’ describes a situation where a separated couple takes it in turns to look after their children in the family home whilst the other parent temporarily lives elsewhere. Like birds looking after their chicks, parents alternate spending time in the ‘nest’.
According to an article in the Guardian from July 2023, divorcing couples are ‘increasingly’ turning to this unconventional arrangement . The article attributes this to the current economic climate and parents needing to save money at a time of soaring housing costs. While the article is now over 18 months old, economic conditions and housing shortages remain much the same now as then. ‘Nesting’ allows families to ensure that the children continue living in the family home whilst the parents rotate staying in a small rental property or with friends/family. At the other end of the financial spectrum, nesting might be considered by parents with the ability to fund three properties so that they each have their own base whilst their children remain in one place.
What is the court’s approach to nesting arrangements?
Despite the apocryphal increase in the popularity of these arrangements, there is only one reported case in which the courts have considered the impact of nesting on children. In Re A, B and C (Children: Nesting Arrangement) [2022] 2 FLR 607, the Court of Appeal dismissed a father’s appeal against an interim order made by HHJ Cohen which had varied a system by which the three subject children lived with both parents under a ‘2:2:5:5’ nesting arrangement. Whilst the father had sought for this to continue and the children (aged 17,15 and 9) wished to remain in the former family home, the mother supported moving towards shared living arrangements between two households.
An independent social worker instructed as an expert reported that ‘nesting’ was not in the children’s best interests primarily due to the ongoing discord between the parents. In his judgment, HHJ Cohen stated that the nesting arrangement had ‘significantly overextended beyond the time that it has been helpful to the children’ [16]. He concluded that the arrangement gave the children false promises about the reality of the separated family situation, deprived them of quality time with their mother in her new home and impinged on the mother’s ability to parent effectively. The father appealed on three grounds, the second being that the judge was not an impartial tribunal having previously made a comment during separate financial remedies proceedings in 2019 that the nesting arrangement was ‘desperately unsatisfactory’. The Court of Appeal dismissed the father’s appeal, holding that the views expressed by the ISW ‘could hardly be said to be controversial’ and that the judge’s observations were ‘equally unobjectionable’ [33]. The judge’s treatment of the issues surrounding the nesting arrangement was held to have been ‘notably balanced’ and ‘child-focused’ [31].
Much like HHJ Cohen’s analysis, the philosophy behind these arrangements appears to be child-focused. However, as set out below, whether nesting will be in a child’s best interests will be highly fact specific.
The benefits of nesting
On a positive note, nesting arrangements can benefit children by providing a sense of stability during a difficult time of transition. These arrangements remove the need for a child to adjust to a new environment whilst also having to adjust to their parents’ separation. Staying in the family home allows children to remain in familiar surroundings, keep to their usual routine, attend the same school/clubs and to maintain friendships. This sense of continuity may help children to feel more secure and avoids the emotional strain of moving back and forth between two households. For this reason, nesting might be a particularly practical solution for separating parents who have children with special medical or educational needs.
In addition, where the parties have limited capital resources which are mostly tied up in the equity to the family home, it may not be affordable for both parents to secure appropriate accommodation for a shared care arrangement pending the sale of the family home. In such a case the children may not be able to enjoy quality overnight arrangements with both parents for a significant period during which the financial consequences of the relationship breakdown are addressed. In these cases the parents can share the cost of a smaller property for their use – or sofa surf with friends and family – when they are not caring for the children and the children can maintain a meaningful relationship with both parents during this interim period.
Nesting also allows parents to stay actively involved in their children’s care by maintaining a consistent presence in their daily lives. These arrangements ensure that both parents are able to remain fully engaged in their children’s well-being, contributing equally to daily tasks like helping with schoolwork, attending medical appointments and providing emotional support. Further, nesting may be the only alternative to children having to live with two warring parents under the same roof. In these circumstances, nesting may prevent children from having to witness conflict and hostility in the family.
The difficulties with nesting
However, what happens when one parent wishes to nest and the other doesn’t? Objections to nesting can arise for a number of reasons. A resistance to sharing a bedroom (albeit not at the same time) can arise for a number of reasons and parents may feel vulnerable to having their belongings damaged or their privacy invaded and/or being accused of tampering with or damaging the property of the other. One parent may wish to take strategic advantage of being in the family home and marginalising the other parent who lacks the financial ability to obtain appropriate accommodation nearby so that a shared care arrangement can be put in place. A parent in the family home can use their position to prolong the sale of the property and/or in an unmarried relationship breakdown, use the situation to manipulate the other parent into conceding a larger share of the equity on sale in order to ‘buy’ their cooperation with the sale process.
In these cases what can the family court do to enforce a nesting arrangement? And would it work anyway? In A, B and C (Children: Nesting Arrangement) an important factor was that there was ‘‘there is more than enough money to sort it out … with the resources available in this case … it should be more than possible to arrive at a solution where each has their own home and it is the children who do the shuttling rather than the adults.’ Sadly that is not always the case, at least not in the short term.
The Children Act 1989 can dictate when a parent has the care of a child but it does not extend to occupation of the family home. Accordingly, the only way for a family court to regulate the occupation of a family home by separated parents would be under an occupation order made under Part IV of the Family Law Act 1996. While an occupation order has the capacity to regulate the adult use of the family, and in combination with a Child Arrangements Order could provide an enforceable solution to enable nesting in an appropriate case, in a situation where allegations of domestic abuse have been made, such an arrangement has the potential to backfire in terms of child welfare as the circumstances may well give rise to increased tensions and hostility and in so doing expose the children to increased risk of emotional harm. Nesting may not be the silver bullet to resolve these situations.
Conclusion
In conclusion, while nesting arrangements can offer certain benefits, such as providing stability for children and allowing both parents to remain actively involved in their care, they can also come with significant challenges. If parents are willing to work cooperatively and flexibly with each other, the arrangement can be very effective at protecting children from instability and disharmony during a period of transition, as it allows them to stay in familiar surroundings and maintain routines. However, even in a situation where the parents can cooperate to make the arrangements work for the benefit of the children, a nesting arrangement is unlikely to offer a good long term solution as they will need to adjust to the new reality of having separated parents who will need to move on and create new homes of which they will become a part in due course.
However, when parents are not amicable, even in the short term, nesting can exacerbate conflict, and provide fertile ground for fresh allegations and disputes. The arrangement may also take a toll on parents’ mental health, affecting their ability to effectively care for their children.
Ultimately, whether a nesting arrangement is in a child’s best interests will depend on the family’s specific circumstances and will require a multi-faceted analysis and evaluation. Careful consideration of the parents’ relationship and their ability to cooperate will be crucial and a carefully structured written agreement between the parents will be essential to identify the rules that the parents agree will underpin their bespoke arrangement. Mediation and collaborative law may be useful to assist parents who want to make it work, find a fair and effective way to do so, with clear boundaries and rules that they each agree to abide to. This will minimise the risk of misunderstandings and unrealistic expectations (who changes the bed or does the washing up or pays the rent for example) and therefore decrease the risk of the children being exposed to increased acrimony.
Where agreement cannot be reached, and one party feels strongly that nesting is necessary, the court will need to evaluate the welfare considerations, having regard to both s.1 of the Children Act 1989 and the relevant sections of the Family Law Act 1996, to determine whether such an arrangement should be imposed on the parents. When undertaking that analysis the court will undoubtedly have at the forefront of its mind whether the arrangement may do more harm than good.
Accordingly, when advising clients out of court, or structuring a skeleton argument to support your case at a final hearing, we would suggest that advice/arguments advanced address each factor in the s.1 Welfare Checklist and s.33(6) of the Family Law Act 1996, and within that analysis it may be helpful to emphasise:
• The risks of harm to each parent and child if nesting is ordered and the parental occupation of the family home is regulated under the Family Law Act 1996, and how any risk can be ameliorated by specific issue orders and/or injunctions under either Act.
• The risks of harm to each parent and child if parent A moves out and how such risks can be ameliorated by specific issue orders and/or injunctions
• The risks of harm to each parent and child if parent B moves out and how such risks can be ameliorated by specific issue orders and/or injunctions
• The financial resources of each party and how those resources could be applied to meet housing needs under a nesting arrangement or otherwise – including under Schedule 1 of the Children Act 1989
• In a case of separating married parents how an interim financial remedies order may be used to facilitate appropriate housing arrangements for the parent who would be caring for the children outside the family home if nesting were not ordered.
Ruth Cabeza and Imogen Pitts
2025
