Our Blog

An ongoing series of informational entries in the field of Alternative Dispute Resolution

Nesting Custodial Arrangements 

November 20, 2018

During the last decade, nesting custodial arrangements have been trending, even The New York times published an article about it. You can read the article located at https://www.nytimes.com/2017/05/30/well/family/after-divorce-giving-our-kids-custody-of-the-home.html.  


So what is nesting? Nesting is a creative custodial arrangement, it is still not as popular as other custodial arrangements, such as joint physical or shared custody. But, nesting is a child-centered custodial concept in which the children will retain custody over the marital home after a divorce. Meaning, children will reside 100 percent of their time in the home. A simple description of nesting can be described as this. When you think about the concept of the nesting process, think about parent birds who come and go from the nest while the baby birds remain at home in the nest. 


Under a nesting custody arrangement, the children would remain in the home, while each parent would have scheduled dates and times in which they would reside in the home with the children.


What are the benefits of a nesting custody agreement?


While it is recognizable that a nesting custody agreement will not work in all co-parenting situations. In order for a nesting custodial agreement to work, parents must exercise self discipline and agree to leave behind those issues which resulted in the separation or divorce. In other words, nesting arrangements between co-parents are favorable because these parents believe that allowing the child to stay in the home while each parent rents out a separate apartment is putting their child's best interest before their own interest. You can't fault parents who wish to avoid the drama and cause the least amount of chaos and disruption in the lives of their children.


So what are the benefits? First, nesting custody agreements are child-centered. The intended goal should be to ensure that there is less disruption to a child's life and environment. The key element is the sense of permanence a child keeps when she is able to stay in the home in which she has established familiarity and routines. Also, children benefit from not having to change schools or endure discomfort from meeting new friends.

Also, for parents, benefits include not having to make the immediate decision to sell the home. Other benefits include saving costs on post-divorce housing expenses as a result of the divorce.


The pitfalls of nesting agreements.

There are also some disadvantages to a nesting agreement. Critics often claim that a nesting arrangement prolongs the separation or delays the inevitable. Also, critics also claim that its not emotionally fitting for children because it doesn't allow kids to grieve the divorce, or may send conflicting messages that the parents have a shot a reconciliation. However, some child psychologists claim that a short term nesting agreement can be beneficial to children, such as Dr. Fran Walfish (http://drfranwalfish.com), who states that nesting agreements should be capped at three months.


Other considerations before deciding that a nesting agreement will work include:


Child Support - How would child support be allocated under a nesting agreement?


What is the role a new significant others? When should new boyfriends and/or girlfriends be allowed to stay in the home, or should they?


What is the duration of the nesting agreement?

Is this kind of agreement really in the best interest of my child? What are the other available options?


It is recommended, however, that in matters involving domestic abuse or abuse of any kind, that nesting agreements not be considered. Absent abuse, nesting agreements are alternatives that can be creatively crafted in mediation or another form of dispute resolution process such as custody coaching. 

Alternative Dispute Resolution Year in Review - 2018

December 31, 2018

In 2018, there were some significant developments in the field of alternative dispute resolution (ADR) which will have an impact on neutrals, businesses and consumers. We recognize that there other developments which occurred throughout the nation and have not been included in this list of reviews. We do hope that you find those covered here and linked to the sources very informative. 


Arbitration - 

Diversity and Inclusion Issues

 Hip Hop Mogul Jay-Z  vs. American Arbitration Association. 

In November 2018, New York hip hop artist and entrepreneur Jay-Z was successful in his request for a Temporary Restraining Order(TRO) to halt arbitration proceedings. A New York City Supreme Court Judge granted his Motion to delay the arbitration proceedings in his battle with Iconix Brand Group, a brand management company that acquired the Rocawear brand and its related trademarks in 2007. 


Jay-Z and Iconix entered into a couple of agreements related to the acquisition of the Rocawear brand. It appears that both agreements included arbitration provisions in which the parties agreed that any disputes arising out of the agreements would be administered by the American Arbitration Association (AAA). According to Jay-Z's Petition to Stay Arbitration, his counsel was unsuccessful in his search, according to the AAA's guidance, to select a potential arbitration panel of neutrals using the AAA's search platform. Jay-Z argued that not a single African American neutral who was qualified to oversee the arbitration from the AAA's roaster of 200 potential arbitrators in the New York City area and Large Complex Cases. He argued that the AAA lacked diverse arbitrator panel members, more specifically, African Americans, who are qualified to be referred "large and complex cases", which essentially is racial discrimination and against New York's public policy. 


However, Jay Z's has since withdrawn his Motion and recent letter from Alex Spiro, who represents Jay-Z , Spiro states,  “While the information AAA provided has confirmed that AAA lacks an appreciable number of minority (and particularly, African-American) arbitrators, AAA has indicated an openness both to an arbitrator selection process in this Arbitration that will allow for meaningful consideration of African-American arbitrators and to broader remedial measures intended to improve the diversity of the arbitrator roster for future arbitrations.”  You can learn more about this story here


Jay-Z has raised the issue of the lack of diversity of neutrals on the AAA's roasters, which is not surprising nor is it a new topic, and more generally, there tends to be a lack of diversity of neutrals within the field of ADR.  For several years, diversity and inclusion efforts within the field has been brought to the attention of the forums, bar associations and professional associations to encourage the inclusion of neutrals who are women, people of color, and minorities. While some progress has been made, there is still much more which needs to be done, and perhaps Jay-Z's arguments can move the needle.