In legal disputes over the physical custody and parent-time awards, minor children have the greatest stake in the outcome.
Minor children who are mature and intelligent enough to articulate their knowledge and preferences relevant to the issues of custody and parent-time are key sources of evidence in child custody and parent-time disputes. Children have unique and invaluable knowledge insights that no other witness or source can provide. Such evidence is crucial to a court’s custody and parent-time rulings in the minor children’s best interests.
The conventional approaches in Utah for obtaining evidence from the minor children are almost always involve exclusively appointing a custody evaluator and/or a private guardian ad litem (PGAL), neither of which make an objectively verifiable recording of their interviews with the children. By any meaningful standard, such approaches are defective methods for obtaining the best form of the children’s testimony. Indeed, and with due respect to contemporary Utah custody evaluators and PGALs, their practices leave much to be desired when it comes to the evidential value of their work product, especially (though not exclusively) in light of the amount of time and money they consume.
There are plainly better ways of clearly and fully obtaining the children’s perspective in custody disputes—ways that are more efficient, that consume far less time and far less money and yet are more accurate and reliable than the contemporary[1] Utah practice of appointing custody evaluators or PGALs.
This post identifies the defects in contemporary custody evaluator and PGAL practices and identifies superior methods of conducting more evidentially sound, more expeditious, less expensive child interviews without causing the children harm.
Contemporary Utah Custody Evaluators and Guardians ad Litem Methods Are Deeply and Needlessly Flawed and Inadequate
The traditional methods of utilizing custody evaluators or guardians ad litem for interviewing children in Utah child custody and parent-time disputes are not only costly and inefficient but also produce incomplete, biased, and inaccurate evidence.
Expense.
Custody evaluations typically cost no less than $3,000 (initial retainer alone) and usually escalate to $10,000 or more, especially if the evaluation includes a written report. And this does not account for additional expense if the evaluator is deposed or required to testify at trial. PGALs have the same flaw. Rarely, even in the least contentious cases, do PGAL fees end up being less than several thousands of dollars, and in more litigious cases their fees reach into the tens of thousands quickly and easily.
A custody evaluator’s and/or PGAL’s fees are another potential source of contention and litigation as well, if and when the parties litigate who should ultimately be ordered responsible for those fees.
In contrast, an interview of a child—complete with written transcript—can be conducted for a fraction of the cost 1) by a judge, 2) by a deposition, or 3) by someone (attorney or otherwise) appointed solely for the purpose of interviewing the child. An interview conducted by the commissioner or judge is free of charge to the parties. Even if an attorney or forensic mental health professional charges a fee to conduct an interview of an hour or two, the cost of that expense is well under $1,000. A transcript would cost between $0 and $250.
Inefficiency.
A custody evaluation, from appointment to completion, typically takes 6 to 12 months to complete. Even the fastest Utah custody evaluations (if performed as intended by the courts) take 2 to 3 months at best. PGALs may work faster (though there are no guarantees), but even PGALs spend weeks or months before making their reports and recommendations.
In contrast, direct interviews with children can be completed in a matter of days, thereby expediting the process and reducing the burdens on parents and children alike.
The accounts of custody evaluators and PGALs who do not record interviews are unreliable.
Most concerning is the total absence of protection against inaccuracy (whether inadvertent or intentional), incompetency, and bias in custody evaluators’ and PGALs’ interviews because they do not record their interviews for the record (and I cannot find a single custody evaluator or PGAL in Utah who is willing to do so).
The custody evaluators and/or PGALs then report on their alleged[2] interviews with the children and make recommendations. These reports of the alleged interview and the recommendations based upon the alleged interview inherently rely upon pure hearsay evidence. Instead of a firsthand account from the children (in the form of an objectively verifiable sound-and-visual recording of the interview), custody evaluators and PGALs will claim to report what the children have said or communicated with them, even though the evaluators/PGALs ensure no record of the interview exists to verify against the evaluators’/PGALs’ claims. The trust placed in these hearsay-based reports and recommendations is unwarranted and misplaced. It ignores the fact that custody evaluators and PGALs are subject to, whether consciously or subconsciously, inattention, forgetting, misremembering, and personal biases.
Custody evaluator and PGAL reports are, at best, second-hand, summary accounts that we have no way of verifying whether they accurately reflect words and desires the children actually and fully stated. No one in a child custody dispute is affected more than the children themselves, and it is frustrating when a court needlessly settles for such patently mediocre evidence needlessly. This problem could be easily solved by having the interviews with the children made on and for on the record.
Indeed, without a mechanical sound-and-visual recording of the interview, there is no independently verifiable record to ensure the accuracy and completeness of the evaluator’s or PGAL’s report. Yet the very mention of interviewing children for the record is usually met with strenuous opposition. There is an undeniable institutional belief in Utah domestic relations law that the mere act of recording a child’s interview in a child custody/parent-time dispute would “traumatize” the child. The belief is as false as it is absurd. If there is a valid scientific study or other such resources that provide proof of (let alone evidence of) this belief, I cannot find it. In fact, there is more evidence that custody evaluations are detrimental in their effects on a family than there is evidence of the opposite.[3]
Nevada and Arizona courts routinely interview children in child custody/parent-time cases for the record. In Michigan, a trial court was reversed for failing to interview children who were old enough to express their preferences.[4]
There is nothing inherently traumatic about a child being interviewed on and for the record (law enforcement and DCFS record child interviews when investigating allegations of child abuse, both physical and emotional). There is nothing inherently traumatic about a child being interviewed on and for the record by a judge, commissioner, or skilled (and sensitive) litigator. Still, the “recording traumatizes the child” belief persists, leaving the parties and the courts in Utah custody/parent-time disputes to make proof and evidence matters of literal faith over fact. Evaluators and PGALs literally get away with keeping no objectively verifiable sound-and-visual record of child interviews, leaving no way to hold them accountable for the quality, accuracy, and evidential value (or the lack thereof) of their work. This flies in the face of the most basic due process and the fundamental integrity of the judicial process.
The prevailing practices among custody evaluators and PGALs in Utah can and should be abandoned in favor of amply available superior ones—practices that are objectively and verifiably far more cost-effective comprehensive, expeditious, and accurate methods of learning what and why the children experience, observe, feel, desire, and intend.
The Virtues of Interviewing the Minor Children on and for the Record
A common argument against recording interviews with children is that some children may not be frank and forthcoming if they know they are being recorded. While it is true that some children might feel inhibited in some cases by having their interviews recorded by sound-and-visual means, it is equally true that some children would be more frank and forthcoming because they know their interviews are being recorded, thus providing them with the assurance their testimony will not be bowdlerized, misconstrued and/or misrepresented. A complete and objectively verifiable record empowers children to speak their minds, because their statements will be accurately reflected for the judge’s consideration.
Presuming that children as a rule are traumatized by participating in a recorded interview is overbroad and does not reflect reality. Without first objectively determining that a particular child would be traumatized by the mere knowledge that his or her interview will be recorded (and precisely why and how that would be), no one can presume (much less conclude) that recording that child’s interview is inherently or inexorably traumatic.
The supposed benefit of appointing a custody evaluator or PGAL is that they ostensibly have special training that makes them more capable or competent to interview a child than does a judge or lawyer. First, the “special training” is not that special and not that extensive. Frankly, any thoughtful legal professional who is skilled in direct and cross-examination can more than competently question a child appropriately on matters of child custody and parent-time.[5] Indeed, the principles of good direct and cross-examination are what underly the principles of good forensic interviewing.[6]
I reiterate that there is a lack of scientific support for the claim that children are traumatized by the mere participation in a recorded interview.[7] In fact, I can find no scientific support for such a notion in the context of child custody and parent-time disputes. Moreover, there is no evidence that conventional child custody evaluations result in optimal outcomes for the children and parents subject to them.[8] These two facts taken call into question the validity of any concern over mere recording of the child interview as “traumatic” or in any meaningful way inappropriate.
I have participated in child depositions in child custody and parent-time disputes that were sound-and-visually recorded. He has yet to encounter a situation in which the child was in any way harmed by it. Indeed, after hearing directly from the child on the record, the child interview provided the parties in one particular case with the evidence they needed to settle the dispute. The child was not traumatized by the experience of being recorded and was grateful that her own voice was fully heard, unrestricted and unedited.
Some argue that there is a danger of retaliation by some parents against the children if the child expresses something that parent does not like. Even if that were true, the same risk exists when a custody evaluator or PGAL claims to report what a child allegedly said (it still gets back to the parents). Moreover, an evaluator/PGAL report is summary and more generalized than the complete sound-and-visual record of a child’s interview, which produces truncated, ambiguous, equivocal evidence that can naturally be more easily misunderstood and misconstrued by an angry parent. Objectively verifiable records protect children by preserving the complete and unredacted record.
Objectively verifiable sound-and-visual recording of child interviews and appeal. Interviews of the children made on and for the record enable the parties to assess for themselves whether the court’s assessment of the evidence is reasonable and fair or whether the court’s findings and conclusions should be amended/corrected (URCP 52) or appealed. The evidentiary value of a recorded interview substantially outweighs the inconvenience of discomfort recording may (may) cause. The idea that recording child interviews universally or even generally traumatizes children is a bogeyman. “That which can be destroyed by the truth should be[.]” “Of what would you choose to remain in ignorance?” (P. C. Hodgell, Seeker’s Mask)
Alternative, superior methods for interviewing the children on the record. While there are many superior alternatives to the “take my word for it” approach of contemporary Utah custody evaluators/PGALs, I identify and propose three (in no particular order) from which the parties and the court could select the alternative that it deems most suitable in a particular case.
An in camera judicial interview of the children on the record. This alternative method of interviewing the children on the record is free of charge to the parties. It enables the court to hear from and to observe the children directly. What better way for the court to determine for itself the credibility of the child’s testimony and the weight to give it? The parties would each submit to the court in advance of the interview a list of questions they want posed and answered. Subject to the abuse of discretion standard, the commissioner and/or judge can refuse to ask any question submitted by a party that he/she may find objectionable or otherwise inappropriate and is be free to ask any questions of his/her own.
Allowing the parties’ attorneys to interview the children on the record. By this method the respective attorneys for the parties would jointly conduct the children’s interviews. Each attorney may make his/her own recording of the interviews, and a third “backup recorder” would be utilized to make a sound-and-visual recording of the interviews as the official record of the interviews. In advance of the interviews, the attorneys confer, formulate a stipulated set of questions, and submit it to the court for approval. Both attorneys would be present during the interview to ensure that the questions posed are posed as agreed (making accommodation, of course, for any questions that can and should be asked if needed or warranted in the course of the interview) and posed in a manner consistent with the rules of evidence. While more expensive than a free-of-charge interview by the court, the parties still save money (and get a record to boot) compared to the cost of a custody evaluation or PGAL. This alternative interview method is also more expeditious and more accurate than if interviews were conducted in the course of a custody evaluation or if a PGAL were appointed to conduct the interviews.
Having a neutral third party to interview the children on the record. The court could order that 1) a mental health professional (MHP) qualified in forensic interviewing for child custody and parent-time disputes or 2) a skilled neutral attorney, not serving as a private guardian ad litem, be appointed for the limited scope and purpose of conducting the interviews of the children, or 3) both an MHP and a neutral attorney interview the children. In advance of the interviews, the attorneys for the parties confer with the attorney and/or MHP appointed to interview the children to formulate a stipulated set of questions (making accommodation, of course, for any questions that can and should be asked if needed or warranted in the course of the interview), and submit it to the court for approval.
The parties would bear the costs of the fees the MHP and/or attorney would charge to interview the children. In the event that the parties cannot reach an agreement on a third-party attorney, they can submit a list of proposed interviewers to the court, along with brief argument for or against who is proposed, and the court would then select the interviewer(s). The parties’ respective counsel would be permitted to monitor the interviews by closed circuit, so that if the interviewer needs to be corrected, it can be done in real time. The neutral MHP’s and/or attorney’s recording will be the official record of the interview. The costs in time and money incurred by implementing this method would still be substantially less than the costs of a custody evaluation and/or a PGAL appointed, while still resulting in an objectively verifiable record of the interviews (Utah evaluators and PGALs refuse to make such a record).
Regardless of which method is utilized, the court should generally also order that:
· the children be interviewed separately and collectively;
· each party may make his/her own recording and transcript of interviews conducted jointly by them (if the court itself elects not to conduct the interviews);
· each party’s counsel may make his/her own recording and transcript of interviews conducted by a neutral MHP and/or attorney; and
· if the parties cannot agree upon the content of a transcript, they will bear equally the cost of having a transcript prepared by a certified court reporter. The transcript (either the stipulated version or the version prepared by the court reporter) shall be filed with the court as part of the record of the case.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] I utilize the word “contemporary” liberally to ensure I distinguish between the current practices of Utah custody evaluators and PGALs and practices that could and should be implemented by custody evaluators and PGL’s but are currently not followed.
[2] “Alleged” because there is no evidence in the record a) that the custody evaluator’s and/or PGAL’s interview actually took place; b) of the questions (if any) asked, or c) the responses (if any) to them.
[3] See Ira Turkat, Harmful Effects of Child-Custody Evaluations on Children, 52 Ct. Rev.: J. Am. Judges Ass’n 152, 155 (2016).
[4] See e.g., Stringer v. Vincent, 411 N.W.2d 474, 477 (Mich. Ct. App. 1987).
[5]See e.g., Model Standards of Practice for Child Custody Evaluation, Ass’n of Family and Conciliation Cts. (2006), https://www.afccnet.org/
[6] A list of generally applicable principles of child interviewing in custody disputes developed by researchers. See Karen Saywitz et al., Interviewing Children in Custody Cases: Implications of Research and Policy for Practice, 28 Behav. Sci. Law 542, 549–56 (2010):
Interviewing Children in Custody Cases: Implications of Research and Policy for Practice
1) Provide an age-appropriate, private environment with minimal distractions.
a) age-appropriate environments are thought to reduce stress, improve motivation, cooperation, attention, retrieval of detail, resistance to suggestion, and communication.
b) Interviewers will want to remove intriguing objects that compete for a young child’s attention.
c) Similarly, interviewers who answer telephone calls or respond to other distractions during interviews may find it difficult to redirect a young child back to the task at hand.
d) Private interviews are recommended to eliminate the appearance and reality of cross contamination from others who may have a vested interest in the outcome (e.g., siblings, grandparents).
e) Let children know where significant others will be waiting. Provide an outline of the mechanics of the interview to eliminate uncertainty and fear (e.g., ‘‘We will be sitting in this room the whole time. It will be just the two of us together talking’’).
f) In situations where children indicate they are unwilling to be interviewed alone; the interviewer may allow an adult support person to be present for the start of the interview. Interviewers will want to consider taking precautions in these situations, such as instructing the support person to sit behind the child and to redirect the child back to the interviewer if the child has questions. Many protocols recommend asking the adult to leave once the child is comfortable but before substantive questioning begins. Additionally, it should not be assumed that a parent’s presence will decrease stress.
2) Prepare children with age-appropriate explanations of the purpose of the interview, the child’s role, and the functions of the professionals.
a) Children lack a context for understanding the purpose of the questions, consequences of their answers, and the role of the various professionals involved.
b) They fill in gaps with misunderstanding, anxiety, self-blame, and heightened or unrealistic fears that hinder open communication.
c) There is reason to believe that children are likely to benefit from efforts to demystify the legal context.
d) In addition to introductions, interviewers will want to explain their own job responsibilities and objectives. Psychologists and lawyers might explain that they help families solve problems and gather information to pass on to judges to ensure judges can make the best plan for the whole family.
3) Create an objective, non-judgmental atmosphere where children’s perceptions are explored and respected. Demonstrate a willingness to hear all sides, without pressuring children.
a) The goal is to understand the child’s vantage point as valid and unique from other family members. Therefore, make it clear that you are interested in what the child thinks, feels, and remembers (not some absolute truth).
b) interviewers are wise to avoid creating a forum that forces children to reject one parent and side with the other, possibly burdening children with guilt or anxiety and taxing their already divided loyalties. Studies are clear that interviewers should refrain from pressuring children. The goal is to provide an opportunity for self-disclosure without creating a false statement that may be retracted later. Many children are ambivalent about disclosing private, painful, or embarrassing information or have been warned or threatened not to talk. Pressuring children may taint children’s reports, undermine their credibility, or create avoidable inconsistencies.
c) To maintain objectivity, let the child tell you what is important, then summarize in the child’s own words and verify that you understand his or her intent correctly without agreement, debate, or taking sides.
4) Make an effort to establish rapport through non-suggestive means.
a) Most guidelines mention that interviewers need to spend time establishing rapport and trust.
b) Although there is no set list of icebreakers, some research suggests there is value in using early verbal interactions to demonstrate that the child will be expected to provide as much detail as possible in his or her own words with minimal prompting. Begin the interview as you would like it to proceed – create the expectation that the child will be doing most of the talking; you will do the listening. Give children at least 10–20 seconds to answer a query. Do not rush in with more questions; children need time to process the syntax and cognitive demands of the question and to formulate answers.
5) Promote a supportive, welcoming, non-threatening atmosphere.
a) Social support usually consists of eye contact, smiling, warm intonation patterns, relaxed body posture, initial rapport development, and complimenting children on effort without regard for accuracy (‘‘You are really listening carefully, trying to do your best.’’). Studies indicate that when it is not tied to specific content, but is provided independent of content, social support can help children overcome resistance and improve performance, without contaminating their accounts of non-abusive events, even after a 1-year delay. However, it is critical that supportiveness not become selective reinforcement of responses that fit the interviewer’s a priori beliefs.
b) Interviewer bias has been linked with distortions of children’s accounts, underscoring the need for objectivity and neutrality.
6) Match the demands of the interview to the child’s stage of development. Use language children comprehend, and concepts children understand.
a) Problems arise when questions are asked in language too complex for young children to comprehend, about concepts that are too abstract for them to understand. Children often answer questions they do not understand, which may then lead adults to misinterpret their meaning. Consequently, a child who comprehends simple sentences five to seven words in length should not be asked 20-word, compound questions with embedded clauses and double negatives.
7) Establish conversational ground rules and shared expectations with practice narratives and instructions.
a) Researchers have found that setting conversational ground rules in advance of substantive questions increases the reliability of children’s responses. This can be accomplished by providing children with practice and instructions.
b) Highly leading interview techniques can still distort children’s reports.
c) Promoting accuracy, completeness, and honesty. Often protocols include an instruction that conveys to children that accuracy, completeness, and honesty are important in the legal context. Children are instructed to talk about what really happened, not to make things up, and to report even the little things they might not think are important. Also, research with both maltreated and non-maltreated children has found that eliciting a promise to tell the truth increases children’s honesty as well.
d) Giving permission to say ‘‘I don’t know.’’ Studies have found that children are reluctant to admit lack of knowledge, especially in response to ‘‘yes/no’’ questions, and that they are less suggestible when given instructions to say ‘‘I don’t know’’ rather than guess.
e) Giving permission to say ‘‘I don’t understand.’’ Children benefit from being instructed to inform the interviewer if they fail to comprehend.
f) Warning children about misleading questions. Two studies have found positive effects from warning children that questions might mislead them and then giving permission for them to correct the interviewer.
g) Telling children you don’t know what happened and cannot help them answer questions. Children often assume that interviewers are knowledgeable, even though they are not part of the family and not privy to the events under discussion. Children are more suggestible when they believe the interviewer knows what occurred. Informing children that interviewers do not know what has occurred reduces suggestibility to misleading questions.
8) Engage children in conversations on a wide range of topics germane to the decision-making process. Elicit information regarding both advantages and disadvantages of various options, rather than condensing the task to a question of where children prefer to live.
a) Try to create a situation where children’s preferences are revealed naturally as you enquire about the child’s perceptions of the important aspects of his/her life.
b) For example, to explore the level of chaos or organization in each household, ask young children to tell as much as they can remember about what happens from the time they get up until the time they get to school in each home, or what happens from the time they get home from school until the time they go to bed. These requests ask young children for their accounts of concrete, observable behaviors rather than judgment calls about parental competency.
c) If children take sides, ask what makes them think the way they do and listen with a matter-of-fact tone and open acceptance (‘‘What makes you think so?’’). Try to understand reasons for inconsistencies and different responses to facts from siblings or other sources (‘‘What does your brother think about that?’’; ‘‘What makes Bob think that way?’’). Keep interviews balanced by exploring both positive and negative caretaking. If the child volunteers a preference, explore the context.
d) Resist over-valuing the results of any one conversation; seek out evidence of patterns over time. Sometimes more than one interview is necessary. Remember that a single interview is only one snapshot in time and may not reflect the child’s past, future, or ongoing thoughts and feelings. A younger child’s response may reflect what happened a few minutes ago in the waiting room rather than an enduring belief. An older child’s response may be a distortion designed to protect the most vulnerable parent rather than a genuine preference. Interview behavior may need to be verified, clarified, and compared with samples at other moments in time and considered along with multiple sources of information.
9) Use general open-ended, non-leading questions that call for multi-word responses whenever possible; invite children to elaborate in their own words.
a) Questions that move toward interviewer supplied details increase the danger of suggestibility, since the details may be the product of the interviewer’s presuppositions based on personal biases or information provided by parents.
10) Finally, avoid suggestive techniques that mislead, introduce bias, reinforce interviewer expectations, apply peer pressure, stereotype people, or invite children to pretend or speculate.
a) Although there are individual differences in suggestibility at every age, young children are particularly likely to fall sway to suggestive pressures. Young children are inclined to assume that adults possess a superior knowledge base, which increases their vulnerability to defer to adult opinion. Interviewers should avoid utterances that are coercive (e.g., ‘‘You cannot play until after you tell me what happened with John’’), tags that ask for verification (‘‘He hurt you, didn’t he?’’), negative terms (‘‘Didn’t he hurt you?’’), suppositional questions (‘‘When he hurt you, was he happy or mad?’’), and multiple choice questions (‘‘Was Mary, Jane, or someone else in the house?’’) whenever possible. Avoid subtly rewarding comments in line with interviewer expectations and ignoring or disapproving of other comments. Avoid pressuring children through the use of social conformity, obedience to authority, or induction of accusatory stereotypes (e.g., ‘‘He was bad. He shouldn’t have done that.’’).
[7] I have diligently researched the subject and looked for the evidence to support this belief but have found nothing. If legitimate sources exist, they have escaped my notice.
[8] See Turkat, supra note 2 at 152.