“Speak your mind—even if your voice shakes. . . . When you least expect it, someone may actually listen to what you have to say.”
— Maggie Kuhn
I have my own voice, and I choose my own words.
No one knows or can express my experiences, observations, feelings, opinions, desires, and preferences more completely or more accurately than I.
As long as I can speak for myself I will speak for myself.
I do not need, want, benefit from, or trust someone else to “speak for” me.
I have a right to speak for myself without fear of punishment or shame.
My words will certainly not be silenced, censored, or misstated through the perverse means of someone else being “appointed” ostensibly to “speak for” me secondhand.
— The Minor Child’s Free Speech Statement
One of the worst ways (at least from a cost/benefits analysis) to discover what is in the best interest of a child at the center of a Utah child custody or parent-time dispute (the worst being appointing a PGAL) is to silence the child’s own voice through appointment of a PGAL.[1]
PGALs do not have any particular expertise, resources, or knowledge, and certainly no judicial or other authority to determine a child’s best interest (it is the province of the court to make that determination). The court cannot substitute its judgment for another’s, which is why appointing a custody evaluator is not merely unnecessary, it is arguably an unlawful delegation of judicial authority. The court, not the PGAL, determines the credibility of the witnesses and finds fact; a PGAL does not have that power.
Reports and recommendations from a PGAL are so derivative, subjective, pseudo-scientific, and unverifiable as to nowhere near worth the expenditure of time, money, and effort that they entail compared to simply letting the children speak for themselves. Minor children can be interviewed by the court (resulting in far better evidence than a PGAL could ever provide). An interview by the court and/or by deposition (if the court wishes to avoid interviewing the children) provides the factfinder with the added benefits of A) the interview/deposition being on the record; and B) an interview by the court costs the parents nothing, as opposed the fees a PGAL charges.
No one is better positioned or qualified to hear from the child directly and on the record than the commissioner and/or judge assigned to the case. This is more than reason enough as to why the court can and should interview minor children.[2]
Aside from its lack of substantive evidential value (which is no small defect), a PGAL does not justify his/her costs. Moreover, a PGAL’s un-recorded, unverifiable, second-hand account of what a child allegedly said and/or did not say is utterly unnecessary and unjustified. A PGAL is patently not needed or warranted when the court can hear from the parties’ children directly, in each child’s own voice and in his/her own words, on the record.
At the very least, the child’s testimony of his/her experiences, observations, feelings, opinions, and desires should be obtained by a court interview conducted on the record before the court should contemplate appointing a PGAL. While I am of the considered opinion that a PGAL is rarely, if ever, a good idea when a child is sufficiently intelligent, mature, lucid, and articulate to testify in his/her own words, appointment of a PGAL should never be ordered without the court first interviewing a child and determining whether a PGAL is needed and why a PGAL is needed.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] One of the worst ironies about appointing a PGAL for a child is that while the PGAL is ostensibly the child’s attorney, if the PGAL is incompetent, self-dealing, abusing the child’s rights, lying or otherwise misrepresenting the facts (whether by commission or omission) to the court, the child cannot bring this to the court’s attention without doing so through the PGAL. If the child wants to fire the attorney or speak for himself/herself instead of the PGAL doing the talking, the child is powerless to bring such matters to the court’s attention because of the Catch-22 way the PGAL law is structured: a child represented by a PGAL is literally prohibited from speaking for himself/herself unless the PGAL allows it. What kind of “representation” is that? Unless a child of at least average intelligence, maturity, and ability to communicate who can speak for himself/herself can make a case for having someone else speak for him/her, no such child should be denied the opportunity to testify (whether orally or by sworn statement) in his/her own voice, in his/her own words.
[2] Many cite Utah Code § 81-9-204(5) (formerly § 30-3-10(7)) for the proposition that a child cannot be interviewed without parental consent. This is not true.
or unless “the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.” This is patently false. § 81-9-204(5)(a) provides that “[a] minor child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.” § 81-9-204(5)(a) does not bar a commissioner or judge from interviewing a child of the court’s own accord.
To know what a child has experienced, observed, and felt requires inquiring with the child on the record, not with someone else who claims to have inquired with the child but made no record of the alleged inquiry and the child’s responses and instead provides a subjective, summary, unverifiable indirect account.
Utah Code § 81-9-204(5)(c)(iii) provides only that “[t]he prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.” (emphasis added) Utah Code § 81-9-204(5)(c)(ii) thus does not prevent the court from interviewing a child to ascertain relevant facts (other than the child’s desires regarding custody) bearing upon the child custody and parent-time orders. Moreover, petitioner’s counsel cannot find any case law that construes what “the only method to ascertain the child’s desires regarding custody” means, but suggests that clearly the best method (meaning the most accurate, expeditious, and inexpensive) way to ascertain the child’s desires regarding custody is by having the court interview the children on the record; thus, the petitioner does not know why a court would want to try to ascertain—or could justify trying to ascertain—a child’s desires by any one or more inferior methods; clearly and logically the “only method” language of § 81-9-204(5)(c)(ii) was not meant to condone inferior evidence-gathering methods when the value of such methods is not plainly offset by countervailing interests.
