The concept of 'birdnesting' is not a new one to me. It has been within the vocabulary of many family law solicitors in Scotland for some time now and awareness is growing with the BBC recently writing on the subject.

When parents separate the most common approach is for either one or both parents to leave the family home with the children then living between two different properties when spending time with each parent. A birdnesting arrangement keeps the children living in their own home with the parents both moving out and then taking it in turns to move back in at different times to care for the children, for example on a week-about arrangement.

The benefits of birdnesting

1. Less disruption

The most obvious benefit in such an arrangement is that there is less disruption for the children. Coping with the separation of their parents is often difficult for children. To add into the mix the need to physically relocate away from their home can bring additional stress. With birdnesting children stay in their same bedrooms, surrounded by their usual neighbours and friends and within the same proximity to school as they have been used to.

2. Less luggage

There is no need for parents to have to think about which clothes, toys and school uniforms/bags to pack or what clothes stay at the home of one parent and which at the home of the other.

The negatives of birdnesting

1. Costs – my colleagues and I have discussed the possibility of birdnesting with some clients over the years, but we are only aware of one client who has adopted this approach. The primary reason for this limited uptake is one of cost. On separation, in addition to dealing with care arrangements of the children, most parents will also need to resolve the financial matters arising from their separation. This will include what is to happen with what is usually the asset of greatest value, the family home. It will often be the case that the only way to ensure that both parents achieve an equal or fair division of the property is for the family home to be sold with the proceeds of sale being divided between them.

With birdnesting, the family home is not sold. There are a number of different arrangements that could be put in place instead of sale, such as the transfer of the house from their joint names into the sole name of one parent in exchange for a balancing payment to the other. Or the house might remain in joint names for an agreed period but there can be financial and tax consequences arising from such an arrangement. And so even where parents are committed to adopting a birdnesting option, in many circumstances, it may simply not be financially viable for it to work.

2. Clean break – it is a principle of Scottish family law that, so far as is possible, there is a financial 'clean break' between a couple when they separate. Retention of the family home for the purpose of birdnesting, whether it is transferred into the sole name of one parent or retained in their joint names, does not result in a clean break. But, of course, couples are free to agree and adopt the arrangements which work best for them and their children.

3. Rules - birdnesting will also require some very clear ground rules to be established out at the outset and may require more continued cooperation and communication between parents than may otherwise be the case. When considering what rules to put in place it would often be prudent to take into account the possibility of one or both parents establishing new relationships and what is to happen should that occur.

What next?

We are now, rightly so, living in an era where the rights and views of children are given more prominence than ever before. My colleagues and I have already written and spoken widely on this subject. We continue to monitor the social and legislative developments in this area with great interest.

I have little doubt that birdnesting will increasingly be considered by clients as a viable option when planning next steps on separation. With the assistance of clear legal advice, including the establishment of rules and boundaries, for some parents this may be a way to share the care of their children until they themselves leave home or 'fly the nest'.


Sarah Lilley