Nesting in Virginia Child Custody Arrangements

Posted on Aug 17, 2022 by Katie Carter

I’m going to be completely honest: I’ve never actually worked on a case where a nesting arrangement has worked.

There, I said it. The elephant in the room has been addressed.

But, that being said, I do still have a lot of people ask me about nesting and other living arrangements in custody and visitation cases in Virginia.

What is nesting?

Nesting is the word that we use to describe a custody and visitation arrangement where the children live in one home and the parents rotate in and out.
In a normal custody and visitation arrangement, the children rotate in and out of the parent’s separate homes. Nesting priorities the stability of the children by keeping them in the same home – same rooms, etc – instead of shuffling them back and forth between mom’s and dad’s homes.

Why doesn’t everyone use a nesting custody arrangement?

Nesting is hard.

It’s hard for a lot of reasons. Logistically, it’s difficult because the parents have to maintain their own separate places as well as the main home of the children (normally, the marital residence). Does one parent own it and the other ‘rents’ part time? What about the parent’s other homes? Do they share an apartment for their ‘off’ time, or do they each have their own separate home for their ‘off’ time? Yes – it could seriously mean that THREE homes are essentially ‘required’ to follow a nesting arrangement.

And, then, within the home, it’s challenging, too. Do you rotate in and out of the marital bedroom? Does one of you use a guest room? How do you protect your property when you’re not at home? (We often advise at least one closet with a lock!)

It’s also limiting personally. What happens when you start a new relationship? Your new significant other likely won’t be willing to move in and out of your children’s home with you – and that’s assuming that it doesn’t throw a monkey wrench in the whole arrangement, anyway. What if you have other children?
You can (probably) see that it can get pretty complicated pretty quickly.

Can we set up a nesting arrangement in our Virginia custody case?

Like in a divorce case, there are really two options to resolve a case: (1) you reach an agreement between the two of you, and (2) you go to court and litigate, and the judge decides.

A judge would never require unwilling parties to follow a nesting arrangement. Even if one party really wants it, the judge would not order it.

Nesting is something that would literally only ever happen if both parties agreed to it in a signed custody or separation agreement. Even then, it’s not really set in stone, because custody and visitation is always modifiable based on the best interests of the children. So, if it stops working, for whatever reason, you’d be able to petition the court (and, likewise, so would he) for a change to your custody and visitation arrangement.

And, then, you’d be in the same boat – either you agree, or the judge will order that you follow a more typical custody arrangement.

If the judge orders custody and visitation, what type of arrangement would be ordered?

Under Virginia law, the judge is required to consider all types of custody – shared, split, and primary – equally.

In general, custody is awarded either primarily to one party (meaning that the non custodial parent has 89 or fewer days with the child during the calendar year), or shared between the parties. Split physical custody is less common.

Whether custody is awarded primarily to one parent or shared between both parents (which doesn’t necessarily mean 50/50, but it could), there’s no ‘one size fits all’ custody arrangement that is ordered. I’ve seen every other weekend arrangements, I’ve seen relocation arrangements where the noncustodial parent gets the entire summer and all school vacations, I’ve seen every other week, I’ve seen 4-3-3-4 arrangements – really, there’s a lot of different ways parents can share time with the kids.

I’m just really afraid of losing custody.

Most moms are afraid of losing custody! That’s totally normal. But, in general, you won’t – unless either (1) you view shared custody as a loss, or (2) you have some real issues, like drug or alcohol addiction, homelessness, mental illness, criminal charges, etc going on.

We see a lot of shared custody ordered. It’s not required that shared custody be ordered, but, for many judges, it’s a starting point. In general, the view is to support the best interests of the child, but we’re all also acutely aware that custody and visitation are modifiable – so, if it doesn’t work, it can be changed later.
Most judges think that having mom and dad both involved to the greatest degree possible is what’s in a child’s best interests.

Being able to coparent effectively is also going to help you as you prepare for your custody case. Not being able to coparent is probably a third scenario I should have mentioned when I described losing custody! If you and your child’s father CAN’T share custody, it may be that the judge feels he has to let one or the other of you have primary custody. If that’s not you, well, you could find that you’ve lost the majority of the parenting time.

Nesting isn’t a perfect arrangement, even if it sounds like it might be. It rarely actually works. But, hey, maybe you’d be my first! It’s all about the willingness of everyone to work together, communicate, and put the kids first.

For more information, to download a copy of our book for Virginia moms, or to schedule a consultation, give us a call at 757-425-5200.