The overwhelming majority of judges and domestic relations commissioners in Utah will refuse to have the interview of children who are the subject of child custody disputes recorded by sound-and-visual means. Why?
One of the most common justifications peddled for making no recording is the claim that “a child is more likely to open up and talk freely if they aren’t being recorded.” I can find no scientifically valid evidence to support such a claim (and it is a mere claim, not an actual argument) all the time, and. Can you?
Second, it patently cannot be known if the child was honest in the interview if there is no record of the interview itself. This is so obvious yet virtually everyone I discuss this with acts (and it is acting in the sense of “feigned”) as though we can know objectively what the child said without a record of the child interview. To assert otherwise is as patently stupid as it is dishonest.
By the same token, it patently cannot be shown (and thus not known) whether the child was more honest and forthcoming in the interview because no record of the child’s interview was made.
Some will defend a “no recording” policy by arguing that it is the “industry standard” among custody evaluators not to record child interviews. But an “industry standard” that consists of keeping no record (and instead relying needlessly on rank hearsay, when an objectively verifiable record can so easily be made) to prove:
1) whether the interview of the child ever really took place;
2) the circumstances and environment in which the interview took place;
3) what questions were posed (and not posed);
4) how the questions were posed (leading/misleading?, coercive/pressuring?, compound?, vague?, loaded?, calling for speculation?, etc.);
5) what was stated (and not stated) in response; and
6) whether the answers that an audio recording would capture but that body language and/or gestures would change the context and mean,
is a “standard” that has no scientific validity in the first place.
To be clear, I do not advocate a mere audio recording of the child interview (although an audio recording alone would still be better than no recording at all); it should be a (discreetly made) sound-and-visual recording of the child interview whenever circumstances permit and warrant it.
Many mental health providers routinely record therapeutic sessions. It is not illegal or unethical, and it is done for the protection of therapist and client alike. For a mental health provider serving as a custody evaluator to argue that a child interview should not be sound-and-visually recorded because “that’s not my style” is to make no argument at all. Regardless, an interview of a child in a child custody dispute case is not therapy but forensic and is a type of discovery, so the rules governing therapists do not apply to such an interview.
The idea that there should be no actual, objective, verifiable record of the interview “because the court should rely on the evaluator’s/expert’s impressions and conclusions” would needlessly (and irresponsibly) make proof a matter of faith over faith. “Trust me, I’m an expert. No need to scrutinize the bases of my opinions.” Are you kidding me? That’s ridiculous. Belief is not a substitute for objective and verifiable fact. Besides, determining credibility of a witness is the province of the court, not of the interviewer. Placing the custody evaluator’s hearsay, summary account of the interview between the child witness and the court guarantees the court less—and less reliable—evidence to judge that witness’s credibility.
The article “MANDATORY AUDIO-RECORDING OF FORENSIC INTERVIEWS IN CHILD CUSTODY CASES” (259-AUG N.J. Law. 90 (New Jersey Lawyer, the Magazine, August, 2009), by Curtis J. Romanowski debunks it all. I can’t find a copy available online, but I will gladly share a copy with anyone who requests one of me. eric@divorceutah.com. Read this and tell me he’s wrong; I dare you:
“Inasmuch as forensic examinations of this sort are necessarily geared toward the objectification of largely subjective phenomena–the inescapable province of the social sciences–there must be safeguards to assure the accuracy, reliability and integrity of essential components of the evaluation process, which have heretofore escaped review. It would be defiant of logic–if not irresponsible to the parties and contrary to the best interests of any child involved in such inauspiciously momentous matters–to refuse to use available technologies, which are now commonplace and highly unobtrusive, to capture and preserve data, especially where such essential data might turn out to be issue determinative.”
It is long past time to raise the evidential bar for child interviews in Utah custody dispute cases.
Utah Family Law, LC | divorceutah.com | 801-466-9277
