The feasibility of “bird’s nest parenting” in joint custody and other solutions for the family home

When joint custody of minor children is determined in a divorce or separation proceeding, it is necessary to decide how cohabitation will work and how the marital home will be used. In this regard, one option that lawyers specializing in family law are increasingly asked about it known as “bird’s nest parenting”. What exactly is this, and to what extent is it feasible?

Bird’s nest parenting essentially consists of maintaining what was the family home until the divorce as a fixed residence for the children, establishing that each of their parents will alternate moving there during the periods they are to live with the children. The rest of the time, each of them will reside in a different home. This solution can be legally articulated by attributing alternating use of the home to the parents, or by attributing it directly to the children.

Advocates of this method defend it as a way to provide stability for the children, avoiding the possible traumatic effects of constantly moving between different homes and making it easier for them to remain in the home where they were raised.

On the other hand, other opinions discourage bird’s nest parenting because they consider it to be impractical and problematic. In addition to entailing higher financial demands from the start, it could also end up leading to conflict by hindering each of the parents’ attempts to develop a new family life of their own.

The Spanish justice system has not set a clear standard in this regard, although it can be inferred from existing case law that the bird’s nest parenting option is generally considered inadvisable. However, it has been approved in specific cases with particularly favorable circumstances.

Referring specifically to the Catalan justice system, a July 16, 2018 decision by the Provincial Court of Barcelona reminds us that the standard held by the High Court of Justice of Catalonia is to approach bird’s nest parenting as an exceptional system “due to its elevated source of conflicts”, although “it is not ontologically negligible since social reality shows that there are cases in which it can work”.

What, then, is the usual solution for use of the family home in cases involving joint custody? At ICN LEGAL, we remind you that the standard established by the Supreme Court, bridging the gap that still remains in the Civil Code in regards to this situation, is to first award the home to the parent who has greater financial needs, even in the event that the property is solely owned by the other party, since temporary attribution is deemed convenient in order to facilitate the transition to a new residence.

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