The topic of child arrangements upon separation found its way back into the spotlight of the media this month when Canadian Prime Minister, Justin Trudeau, announced his separation from his wife, Sophie Grégoire.
Various media outlets have reported that Justin and Sophie will share the care of their children with the children remaining in Justin’s residence at Rideau Cottage, the government accommodation into which the family moved when Justin took office in 2015. The intention is for Justin to care for the children whilst he is at home and when he travels on business (which is understood to be regularly), Sophie will move into the property to take over the care of the children. When Justin is in residence at Rideau Cottage, Sophie will stay in her accommodation nearby.
B P Collins’ family team advises on this increasingly popular method of coparenting called “nesting”.
So what is “nesting”?
Commonly, the children of separated parents will move between their parents’ homes in accordance with any arrangements that are in place for their day-to-day care. This means they will likely have a bedroom , a set of toys and possessions at each parent’s home and they need to be very organised with school uniforms and equipment and ensure these travel with them. With nesting, the idea is that the children will remain in a singular home, sometimes the family home, and the parents take on the responsibility of sharing the house with the children by taking it in turns to live in the property with the children. By having the children staying in one place with one set of possessions, it is hoped that this will provide them with a good level of stability with minimal disruption to their day to day lives. It is anticipated there would not be the physical and emotional demands of moving between properties.
To have a nesting arrangement in place, it takes a high level of cooperation between the parents. There are likely to be ongoing ties for the parents, over and above the usual parenting responsibilities, due to the financial and physical management of the property where both children live. For example, how will the rent/mortgage and utilities be met? Who is going to mow the lawn, clean the house or repair the damaged fence?
Thought would also need to be given to where each parent will live when they are not staying in the home where the children will be living. This can put an increased financial burden on separating parents.
There is also the emotional impact on the parents as there is the requirement of living in a property where a former partner, and possibly a new partner in the future, will have just stayed.
Sadly, if there is a level of acrimony in the relationship between the parties, such arrangements are more likely to fail. However, if there is a good relationship between the parents and the boundaries and expectations of nesting are clear to all, nesting can be a very positive experience for all involved. Ultimately, any arrangement for the children needs to be in their best interests.
What if nesting is not for us?
Arrangements for children can take many different forms. There is no set approach. However, any arrangements for children should be in accordance with what is in their best interests. Parents are encouraged to try and reach an agreement between them as to what the arrangements should be.
If an agreement can be reached, there is no requirement to obtain a court order to encapsulate these arrangements. The laws in this country provide for a “no order” principle meaning that a court should only intervene and make an order when it is absolutely necessary and when it is in the best interest of the children to do so.
If you and your former partner are unable to agree about whom the children should live and/ or how their time should be spent and with whom, either parent could apply to the court for what is known as a “child arrangements order”. This would deal with arrangements such as with whom a child should live, should there be shared care and generally the time to be spent with each parent. Child custody, contact and residence are no longer terms used by the family court. Instead, the court uses the terms “lives with” and “spends time with”.
If the judge has to make a determination on the arrangement for children, then when considering whether or not to make a decision and if so what decision, he/ she has regard to what is known as the welfare principle. The court’s paramount consideration is the children’s welfare, and so while the judge will listen to the points of view and arguments submitted by the parents, they will ultimately make their decision based on what they consider to be in the children’s best interests, which involves taking into the account:the following:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding).
- The child’s physical, emotional and educational needs.
- The likely effect on him/her of any change in her circumstances.
- The child’s age, sex, background and any characteristics of his/hers which the court considers relevant.
- Any harm the child has suffered or is at risk of suffering.
- How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs.
- The range of powers available to the court.
“In cases where there are no welfare concerns, when looking at child arrangements, it is imperative that the parents work together to try and agree the arrangements for their children. This sends such a positive message to the children. Understandably, this can be very emotive for the parents, especially if their relationship breakdown has been acrimonious. It is important to stay child focused and to have at the forefront of your mind that any arrangements should be in the best interests of the children. Good quality legal advice can help steer you in the right direction in agreeing arrangements as well as making you aware of all the options available to you to try and help you reach an agreement”.