Back on October 6, 2023 we wrote about the concept of sharing custody in a setting where the children stay put and their parents move in and out of the former marital residence. We noted then that the concept can work but requires both parents to be willing to endure the sacrifice of living a smaller existence individually and to avoid the petty indignities that often arise when a home is shared.

We now have an appellate case involving a “nesting” arrangement gone wrong. Curiously, it seems that the Bucks County trial judge was somewhat disarmed by the fact that a once placid arrangement fell apart in a setting where the judge saw merit in both parents. But, nesting can often produce a kind of rugby scrum where proximity breeds contempt and causes bad behavior.

Daniel Parks and Kristen Bierly had their only child, ETP, in 2012 after living together for five years. When ETP was 10 Kristen filed for primary custody in May 2022.  A month later they formed an agreement by which father had eight nights of custody and mother six in a two-week cycle. A local agency did a study of the arrangement and filed a report in September.

While we aspire to see these cases fast tracked, the trial began on April 27, 2023. As the first day of trial ended the judge altered the agreement to make the custody 50/50. The next day of trial was September 18, 2023. At the end of that hearing the judge found that both parents were equally qualified and that the 50/50 arrangement should continue. This had the endorsement of ETP who opined that a shared arrangement seemed “fair.”

Still Father appealed. The gravamen of the appeal is that he is the superior parent. Both the trial and appellate courts seem to “get” his points. Mother did some stupid things. But in his quest to prove his superiority, father misses the fact that despite some petty indignities, the child was getting what she needed and this was what seemed a peaceful and fair arrangement.

All too often parents who have separated tend to see custody litigation as if it is a football game where you either get or fail to move the ball 10 yards in four plays. In their quest to prove that they are the superior parent, they miss the fact that most kids see 50/50 as inherently fair and physically manageable. Judges like it for the same reason which is why many Pennsylvania counties are unofficially 50/50 counties even though the appellate cases inform us that there can be no such official presumption.

The preference for 50/50 is underscored by two aspects of the opinion. During her time with ETP mother works outside the home and relies on a grandparent to provide after school care. Father works from home. The courts sustained 50/50 even though mother was not “as available” as father. There was also evidence of mother engaging in some self-indulgent parenting to father’s detriment. But if you look at the affronts involved, they have more to do with the conflict between the parents than anything that would adversely affect the child. Kids don’t keep lists of parent misconduct. Parents record them as if they are moving violations. Score eleven (11) points and your parenting privileges are suspended. It doesn’t work that way.

Kids benefit from time with both parents even though one promotes reading Louisa May Alcott while the other thinks Mad Magazine or Marvel Comics are good enough. Your custody case rarely turns on whether your ex could pick out your kid’s orthodontist in a line-up. It’s tough for lawyers to communicate this to clients. Inevitably, we sit down with clients and march through the sixteen custody factors. The challenge is that many clients think that if they are favored in nine they win by definition. Again, it doesn’t work that way. In fact, the typical case comes out with one parent winning two, another three and eleven turn out either neutral or immaterial.

We don’t have a lot to draw from this case about how long and how well nesting turned out. When it did end, it seems it was communicated by delivery of a “POD” to store personal property and a bevy of “friends” to help move. Somehow cars were blocked in and someone put glue in the locks for the POD. Suffice to say, these are moves not inclined to soothe the nerves of anyone, not least of which is the child who lives through this. So, the gloves came off and the riots began.

Bierly v. Parks 2667 EDA 2023 (April 30, 2024)

The case: