Blog

In Utah custody disputes, Guardians ad Litem (GALs) and custody evaluators can have enormous influence over the outcome, often so much so that it’s far more than the law actually gives them. Both roles were created with the intention of giving judges better information. In theory, a GAL serves as an independent attorney for the child, and a custody evaluator provides a professional assessment of what custody arrangement would be in the child’s best interest. In practice, both roles can be deeply flawed, wielding subjective opinions with little oversight or accountability.

What the Law Provides vs. What Happens in Reality

Guardians ad Litem
Utah Code § 78A-2-803 authorizes the court to appoint a private GAL to represent a minor in certain cases. The GAL’s duties are 1) to represent the child’s legal interests; and 2) to make recommendations based upon the evidence in the record (some of which can be generated in the course of the GAL’s investigations. That’s it. Nowhere in the statute is the GAL to act as a witness in the case. A GAL is not a fact witness under Utah R. Evid. 602 or an expert witness under Utah R. Evid. 702. In theory, a GAL should operate like any other attorney: interviewing witnesses, gathering evidence, and advocating within the rules of procedure and evidence.

Custody Evaluators
Under Utah R. Jud. Admin. 4-903, a custody evaluator may be appointed to investigate the issues bearing upon the child custody and parent-time awards and provide either an oral report (in the form of deposition testimony) or a written report on what the evaluator recommends in regard to child custody and parent-time arrangements. Unlike GALs, evaluators are considered expert witnesses and can offer opinions if they comply with the rules of evidence governing expert witnesses. The problem? Those standards are frequently applied loosely, and evaluators often rely on pseudo-science, subjective impressions, and incomplete data rather than replicable, reliable, evidence-based methods.

Shared and Distinct Flaws

GALs Acting Like Witnesses, and Worse
Many Utah judges allow GALs to summarize alleged facts or state what a child “said” or “wants”—often in open court, without the children being subject to cross-examination to determine whether what the GAL attributes to the child(ren) is in fact what the children said and meant. That’s hearsay, and it sidesteps the rules of evidence. Yet, courts usually wink at the rules, and hearsay objections to GAL statements are rarely sustained.

Custody Evaluators as “Experts” Without Scientific Rigor
Even though evaluators are appointed as experts, their reports sometimes lack verifiable methodology. “Best interest” conclusions may (and usually do) rest on unrecorded interviews, subjective impressions, and selective notetaking. Rarely is a custody evaluator admonished for such lapses.

I have yet to encounter a child custody evaluator whose methodology truly meets the foundational reliability and disclosure standards required by Utah Rules of Evidence 702 and 705. In practice, these rules—meant to ensure expert opinions are both scientifically sound, transparent, and understandable—are too often treated by evaluators and even the courts as flexible suggestions rather than binding safeguards, resulting in opinions that do not withstand genuine evidentiary scrutiny.

Bias and Favoritism
Many GALs and evaluators will subjectively favor one parent early on and filter their “investigations” and recommendations through that lens. It’s easy to do when courts treat GALs and custody evaluators as presumptively right, citing the fact that they “do it for the sake of the children” as the ostensible reason to believe they can do no wrong.

Undue Judicial Deference
As a matter of “pure law,” GAL and custody evaluator recommendations are not binding on the court. Still, in actual practice, courts often treat those recommendations as gospel. Worse, courts often take offense at sincere and substantive critiques of GAL and custody evaluator methods, diligence, quality of evidence they cite, honesty, and reasoning, making it virtually impossible to expose, discredit, and oust an incompetent and/or biased  GAL or custody evaluator.

Lack of Accountability
GALs enjoy statutory immunity under Utah Code § 78A-2-228. To my knowledge and in my experience, complaints against either GALs or evaluators are rarely investigated in a way that ensures accountability. If a child is dissatisfied with, and wants to replace, his/her GAL, the court inquires with the GAL as to whether that is true—an obvious conflict of interest and opportunity to abuse GAL authority to the detriment of children.

Misconception: GALs/Evaluators as Gatekeepers to Child Testimony

There are four glaring misconceptions regarding GALs and custody evaluators under which the courts operate:

·         the myth that testifying is inherently traumatic or otherwise harmful to children;

·         the myth that GALs “speak on behalf of” a child client;

·         the myth that a child cannot testify without his/her GAL’s permission; and

·         the myth that custody evaluator interviews of children cannot be made for and on the record.

If there is any verifiable evidence that, as a general matter, obtaining the testimony of a child inexorably harms children, I have yet to find it. Yet you’ll hear lawyers and judges spout the line all the time that “the social science studies show” just that. They won’t cite to any actual study (let alone studies), but the dogma is “cited” to prevent child testimony and to rely on court-sponsored, unverifiable hearsay as to what children allegedly told the GAL and/or custody evaluator.

Under Utah R. Civ. P. 43 and Utah R. Evid. 611, a judge may hear directly from a child by interview in child custody disputes. This interview is on the record (and often in chambers (in camera) to ensure protection of the child from unnecessary distress that testifying in a courtroom might cause a child). A GAL may be consulted before or in the course of questioning, but the GAL’s approval is not required for a child to testify. Parents and children alike, who want the court to hear directly from a competent child witness (of any age) can (and should) request an in-camera interview.

Even if a court indulges in improperly permitting a GAL or custody evaluator to proffer alleged hearsay statements from a child, Utah R. Evid. 806 permits the child to be examined (as if on cross-examination) as to those hearsay statement attributed to him/her.

Utah Code § 81-9-204 provides:

(5)

(a) 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 minor child be heard and there is no other reasonable method to present the minor child’s testimony.

(b)         

(i) The court may inquire and take into consideration the minor child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the minor child’s custody or parent-time otherwise.

(ii) The desires of a minor child who is 14 years old or older shall be given added weight, but is not the single controlling factor.

(c)

(i) If an interview with a minor child is conducted by the court in accordance with Subsection (5)(b), the interview shall be conducted by the court in camera.

(ii) The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a minor child is the only method to ascertain the minor child’s desires regarding custody.

Those who would move heaven and earth to prevent a child from testifying cite subsection (5)(a) selectively, claiming that the statute “clearly” provides that “[a] minor child may not be required by either party to testify” unless “there is no other reasonable method to present the minor child’s testimony.” This is disingenuous, and they know it.

Break Subsection (5)(a) into its component parts:

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 minor child be heard

and there is no other reasonable method to present the minor child’s testimony.

Nothing in Subsection (5)(a) prevents a child from testifying voluntarily. Go ahead, read Subsection (5)(a) as many times as you wish; it won’t change.

And now I ask you: if there are “other methods to ascertain the minor child’s desires regarding custody,” what are they? And are they better than, or at least equal to, the accuracy and quality of the child’s own words in the child’s own voice in real time? This is a rhetorical question, of course, because the answer is, with rare exception, “No.”

We didn’t always have this irrational fear of child testimony in Utah. It’s a recent development that I cannot ascribe to any virtuous motive. Children do not need to be “protected” from testifying unless testifying is first shown to be harmful to them. Harm simply cannot be presumed.

What You Can Do Now

• Object to hearsay when a GAL tries to present alleged out-of-court statements of a child as fact.
• Demand evaluator compliance with Rule 4-903; cross-examine thoroughly on methodology.
• Request in-camera testimony from the child when appropriate.
• Make a clear record of any procedural defects and overreach to preserve appeal rights.

Needed Reforms

• Stop appointing GALs and custody evaluators to muzzle children’s testimony.
• Stop indulging in court-sponsored hearsay and the GAL and custody evaluator misconduct of “speaking for” children. Hearsay (and that includes inferential hearsay) is hearsay, even when it’s attributed to a child.
• Sanction GALs and custody evaluators who violate laws and rules.
• Require evaluators to disclose their complete custody evaluation file, including but not limited to all notes, all tests and test results and methodology.
  • Require all custody evaluator interviews with children and with collateral sources, be recorded for the record in the case, so that there is no question:
    • who was and was not interviewed
    • what questions were and were not asked of the interview subjects
      • what questions the interview subjects did and did not answer
      • what the answers actually were
    • how the interviews were conducted (impartially, without undue influence, competently, comprehensively, etc.)
    • as to whether the interviews are an accurate, credible, and reliable source of evidence
• Remove the GAL’s role in deciding whether the child may seek new counsel.

Don’t Expect the System to Correct Itself

Courts, GALs, and custody evaluators are too accustomed to and to enamored of the status quo to expect meaningful correction from within. Not every GAL or custody evaluator does a bad job, but in my experience, most do, frankly, and for the reasons I have discussed. The system as it stands shields subjectivity, bias, pseudo-science, and incompetence. Too often it tips the scales in favor of whichever side the GAL or evaluator happens to believe or like. Parents need to understand these roles, their flaws, their limits, and the “unwritten rules” governing GALs and custody evaluators, so that they can fully defend their children’s rights and their own. Then they have to take a stand. Otherwise, you’ll just get more of the same.

Utah Family Law, LC | divorceutah.com | 801-466-9277