Family law proceedings in Utah (and in all other states, frankly), differ significantly from other areas of civil or criminal litigation, particularly when it comes to evidentiary practices. While the rules of evidence are designed to ensure fairness and reliability in the judicial process, their application in family law cases—especially custody disputes, child support determinations, and protective order hearings—is more “flexible,” and frequently borderline non-existent. This reduced evidentiary standard is perversely defended on the grounds that it serves the courts’ overarching mission: meeting the best interests of the child and resolving familial disputes equitably.
A Lowered Standard of Evidence
Judges and commissioners presiding over family law cases frequently prioritize “practical considerations” over strict adherence to evidentiary rules. Given the nature of family law proceedings, which often involve deeply personal, emotional, and complex issues, courts argue that rigid procedural frameworks are to be avoided.
For instance, hearsay—a statement made outside of court that is offered for the truth of the matter asserted—is generally inadmissible in most civil or criminal trials unless it falls within a recognized exception. However, in family law cases, judges often allow hearsay evidence, citing “the valuable insight” it provides into the child’s well-being or the parties’ parenting capabilities. Examples include statements allegedly made by children to teachers, counselors, or other third parties, which might be (and often is) admitted even without formal authentication or cross-examination.
Informal Procedures
The informality of family law proceedings is another factor contributing to the relaxed evidentiary standards. Unlike a jury trial, where strict evidentiary rules are necessary to prevent prejudice, most family law cases are decided by a judge in a bench trial. Judges in these cases act as 1) the gatekeeper of evidence, 2) the factfinder, and 3) the one who decides the issues ruled upon at trial. Judges in family law proceedings have considerable discretion to determine what evidence is relevant and reliable. Judges decide for themselves the weight to assign evidence. This often results in erroneously confusing the right to weigh admissible evidence with the right to decide what evidence is admissible.
For example, parties in family law disputes frequently present text messages, social media posts, or informal recordings as evidence. While these materials might raise issues of authenticity and reliability in other courts, family law judges often consider them without rigorous scrutiny, reasoning that they can assess the weight and credibility of the evidence themselves. Why they take such an approach to family law evidence but not to evidence in everything else they cannot justify in a rationally consistent, intellectually honest way.
Some argue that the sheer volume of family law cases makes strict adherence to evidentiary rules impractical, i.e., there simply aren’t enough judges or court dates to resolve each case by the book. Yet there is no support for the idea that adhering to the rules of evidence multiplies the number of family law cases or slows their resolution in the courts. Certainly there are former family law litigants who would have benefitted greatly from strict adherence to the evidentiary rules. To argue that the rule of law should not apply equally to family law as to other litigation is to argue for a species of lawlessness. Certainly there are former family law litigants who would have benefitted greatly from strict adherence to the evidentiary rules.
Claims that family law cases are so complex and emotionally charged as to justify a lower evidentiary standard are premised on the ludicrous idea that the more complex and emotionally charged the dispute, the less rigorous the approach to the evidence needs to be. Arguing for a need “to balance fairness with practicality” by disregarding the rules of evidence in family law cases is neither fair nor practical.
Implications of the Relaxed Standards
While it is argued (poorly) that relaxing evidentiary standards in family law cases facilitates just outcomes, it plainly raises several obvious concerns:
- Potential for Unfairness: The lack of strict evidentiary standards can disadvantage parties who are less familiar with legal processes or who lack the resources to collect and present evidence effectively. For example, a parent who is unable to afford an attorney may struggle to challenge improperly admitted evidence or present their own case compellingly.
- Increased Risk of Unreliable Evidence: Relaxed standards increase the likelihood that unreliable or irrelevant evidence will influence the court’s decision. For example, a party might submit unverified allegations of abuse or neglect, which could unfairly prejudice the judge’s view of the other parent without sufficient corroboration.
- Strategic Misuse: The leniency in admitting evidence can incentivize parties to use strategic, but ethically questionable, tactics, such as presenting hearsay evidence or character attacks without solid proof. This can turn family law cases into battles of perception rather than substantive justice.
Why judges claim a need to “balance fairness with practicality” in family law cases but not in criminal and civil litigation they never satisfactorily or consistently explain. It’s an abuse of discretion, pure and simple.
Utah Family Law, LC | divorceutah.com | 801-466-9277
