If a married couple divorces and neither one wants their child, what happens?

Great question. I have discussed this question with others. Their first reaction to the question is along the lines of “Oh, that’s terrible!,” but then we discuss the fact that there are those rare and exceptional families we’ve either known of or heard of in which the parents are good folks, but their children are, despite the parents’ best efforts, impossible to get along with (yet the kids aren’t bad enough to be arrested and locked away).  

I’ve never encountered such a situation as a divorce lawyer, but I wouldn’t be the least bit surprised if I do some day (there is an old joke about a couple who didn’t get a divorce because neither wanted custody of the kids). 

What I have encountered on occasion is a family in which some of the children hate (or at least don’t get along with) one of their parents, and love (or at least tolerate) the other parent, resulting in a split custody award; resulting in Connor and Madison living with Mom, while Jordan and Chloe live with Dad.  

Now back to your divorce scenario where neither Mom nor Dad can stand their kids and neither Mom nor Dad want custody of their kids. What makes your scenario so odd is that we don’t have a process for dealing with it. When parents are bad and the kids are innocent, we have a mechanism by which the state can take the kids from the bad parents and place the children in foster care. If the children are delinquent, we can take them out of Mom’s and Dad’s home and place them in juvenile detention.  

But if 1) the kids aren’t criminals or mentally ill to the point that Mom and Dad simply cannot or should care for them; and 2) Mom and Dad are both fit parents (i.e., law-abiding, non-violent, non-neglectful, able to take care of the children and to provide them with the necessities of life), then Mom and/or Dad would almost certainly be forced to continue to honor their obligation as parents at least to provide the children food, shelter, clothing, and education.  

Usually the court has to deal with parents who are fighting to get sole or joint custody of the kids, not to foist custody on the other parent. So some judges wouldn’t know what to do when each parent comes into court fighting tooth and nail to ensure that he/she doesn’t get “stuck” with custody of the children.  

Such a situation would give rise to a new twist on an old child custody litigation scam. Rather than each parent falsely (and ludicrously) accusing the other of being abusive and neglectful in an effort to “win” custody, each parent would be falsely accusing himself/herself, so that he/she is declared unworthy of being awarded child custody. I won’t lie; given the volume of false allegations parents selfishly make against each other without considering what that does to the kids, flipping the child custody fight script would be as hilarious as it is tragic.  

Utah Family Law, LC | | 801-466-9277  

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