When Utah courts face high-conflict custody disputes, one common suggestion is to appoint what is known as a Private Guardian ad Litem (PGAL)—an attorney ostensibly tasked with “representing the best interests of the child.” In concept that sounds reassuring. In practice, however, PGAL appointments provide little to no real value to the child or the court.
A PGAL is said to “stand in the shoes of the child” and “be a voice for the child,” but for children who can speak for themselves, the law already gives judges better, less expensive, and more transparent ways to hear from children directly. Unless a child’s on-the-record testimony would be either worthless or truly harmful, appointing a PGAL to “speak for” that child is unnecessary and counterproductive.
What Utah Law Actually Provides Regarding PGALs
Under Utah Code § 78A-2-705(1), “The court may appoint an attorney as a private attorney guardian ad litem to represent the best interests of the minor in any district court action when custody or parent-time is at issue.”
The key word is “may.” A PGAL appointment is discretionary, not automatic. The moving party bears the burden of showing that a PGAL is either necessary or at least warranted. Rarely is this the case. Indeed, with extreme rarity does a PGAL’s involvement in a child custody dispute provide any evidential value to the factfinder that the parties themselves can provide through the regular discovery and argumentation process.
Utah law already provides direct and transparent alternatives to a PGAL: an in camera on the record interview of the child by the court directly (see Utah Code § 81-9-204(5)(a)). This ensures the child’s testimony is fully and accurately heard on the record and is reviewable on appeal. Courts can listen to children directly—without filtering their voices through a lawyer who cannot testify and whose communications are not recorded. Except when it is proven that a court’s interview of a child involved in his/her parents’ custody and/or parent-time dispute would do a child (not the court) more harm than good, courts should interview the child, period. To refuse to do so is to act contrary to the best interest of the child.
PGALs Aren’t a Unique Source of Evidence, But They Are a Unique Way to Bury It
The evidence a PGAL can provide to a court is quite limited.
A PGAL is not a witness. The PGAL cannot testify, cannot be cross-examined, and cannot provide the court with the child’s actual words.
What a PGAL can provide to the factfinder is:
- “present witnesses and exhibits as necessary to protect the best interests of the minor” (Utah Code § 78A-2-705(12)(e));
- “identify community resources to protect the best interests of the minor and advocate for those resources” (Utah Code § 78A-2-705(12)(f));
- “disclose the intent and desires of the minor unless the minor:
- “(i) instructs the private attorney guardian ad litem to not disclose the minor’s intent and desires; or
- “(ii) has not expressed an intent and desire.”
- (Utah Code § 78A-2-705(13)(d));
- 1) communicate to the court the minor’s intent and desires; and 2) the private attorney guardian ad litem’s determination of the minor’s best interests, if the minor’s intent and desires differ from the private attorney guardian ad litem’s determination of the minor’s best interests. (Utah Code § 78A-2-705(13)(b));
And “[i]n every court hearing where the private attorney guardian ad litem makes a recommendation regarding the best interest of the minor, the court shall require the private attorney guardian ad litem to disclose the factors that form the basis of the recommendation.” (Utah Code § 78A-2-705(14))
Nothing in the PGAL statute empowers the PGAL to testify for and in place of the child client.
Once a PGAL’s “discloses” his/her version of what the PGAL claims are “the minor’s intent and desires” enters the record, then unless the child can be cross-examined there is no way to verify whether the PGAL accurately represented what the child said, what questions were (and were not) asked of the child, or even whether the alleged conversation occurred at all. There is no transcript, no recording, no opportunity to test credibility or context. The PGAL’s subjective, summary “interpretation” of unrecorded and unverifiable alleged communication with the child client substitutes for the child’s actual testimony. Many will often cite this practice as protecting the child from trauma, but that excuse is nothing but a comforting lie.
The PGAL’s Statements Are Argument, Not Evidence—And Only the Child’s Own Testimony Can Reliably Convey Intent and Desire
Utah law draws a bright line between advocacy and evidence. The Private Guardian ad Litem (PGAL) statute, Utah Code § 78A-2-705, defines the PGAL’s duties as counsel for the child—including the duty to “disclose the intent and desires of the minor.” But the statute does not create an evidentiary exception, nor does it authorize the PGAL to testify indirectly through unsworn narrative. The Utah Rules of Evidence control admissibility. Rule 801(c) defines hearsay, Rule 802 excludes it unless an exception applies, and Rule 1101 makes these rules binding in all civil proceedings, including domestic cases. If the Legislature intended to carve out an exception for PGAL summaries of a child’s statements, it would have said so—as it did in other contexts, such as juvenile proceedings, where Utah Code § 78A-6-115 expressly permits limited child-hearsay to prove abuse or neglect. No such flexibility exists in district-court custody cases.
When Utah courts admit a child’s out-of-court statements, they do so only through a recognized rule—typically Rule 807 (residual exception)—and only after making explicit findings of reliability. A PGAL’s unsworn retelling of what the child “said” (or the sophisticated inferential hearsay method, i.e., “Your Honor, based on my meetings with the child, it’s clear that she feels . . .”), bypasses those safeguards entirely. It is hearsay pure and simple, and it collapses the procedural distinction between what an attorney may argue and what a witness may prove. The risk is precisely the one addressed in Rule of Professional Conduct 3.7, which forbids a lawyer from acting as both advocate and witness because it blurs the line between proof and persuasion.
Even beyond the hearsay barrier, a deeper evidentiary defect remains: credibility cannot be evaluated in the abstract. Under Rule 602, testimony must rest on personal knowledge, and the trier of fact must observe the witness’s words, tone, and demeanor to assess reliability. A child’s “intent and desire” is not a disembodied opinion—it is the product of perception, reasoning, and experience. Without knowing the basis of a child’s position, the Court cannot determine whether it is authentic, informed, or the result of pressure or misunderstanding.
A PGAL’s paraphrase, however well-intended, strips away the very context that gives meaning to a child’s statements. It replaces the child’s voice with the PGAL’s interpretation. The only way to know what a child truly thinks and why is to hear the child directly—through complete, recorded, and age-appropriate testimony. That is the only method consistent with due process, evidentiary integrity, and the Legislature’s intent that fact-finding be based on evidence, not on advocacy disguised as it.
Children Who Are Capable of Speaking for Themselves Need to Be Heard From Directly
Nothing in state law declares that children who can converse intelligently are inherently incapable of or inexorably/irreparably harmed by describing their lived experiences, articulating their observations and perspectives, and expressing their preferences.
Many children involved in custody disputes already talk to therapists, DCFS investigators, and law enforcement officers. If they can communicate with trained professionals about far more sensitive topics, they can communicate with a judge or testify in a deposition or in a hearing in an age-appropriate fashion.
Even children who have had no prior interaction with the legal or social-services system are generally capable of articulating on the record, in their own words, the facts relevant to the custody and parent-time orders.
Children do not require an intermediary to convey their own experiences and preferences. With needless proxies much is lost in translation. Children can explain—better than a PGAL can—to the factfinder directly how each parent treats them, how their parents’ separation has affected them, what custody or parent-time arrangement they view as best for them, and why.
The idea that allowing a willing child to testify inevitably harms the child is not supported by credible research. In fact, well-conducted judicial interviews reduce child distress and yield more accurate information.[1] Children are not harmed by being heard. They are harmed by being silenced.
The Costs of “Protecting” Children from Testifying
Appointing a PGAL makes a case slower, more expensive, and less transparent. The PGAL must investigate, bill, and report—sometimes for months. All of that wastes money and time.
Under Utah Rule of Civil Procedure 26(b)(1), discovery and case management measures must be “proportional to the needs of the case,” considering cost and efficiency. When parents can barely afford their own lawyers, adding another attorney to interview the children off the record is rarely proportional or sensible.
And while a PGAL’s recommendation might comfort the court, those recommendations are not evidence, and thus they are not a record testimonial record that can be reviewed on appeal. If a child’s words never make it into the transcript, no appellate court can determine whether the child’s (alleged) words expressed to the PGAL were misunderstood or misrepresented.
The real harm to children in custody cases doesn’t come from being heard — it comes from being silenced. A child who’s capable and willing to share his perspective should not be treated as fragile porcelain. Shielding him from the process may ease adult discomfort, but it denies him agency and erodes his trust in the system that governs his life. A short, well-conducted interview is not traumatic; it’s empowering. Research shows that children who have a chance to speak directly with the decision-maker feel more respected, better understood, and more accepting of the outcome — even when it’s not what they hoped for.
What truly harms a child is seeing strangers decide his fate without ever asking him what he thinks. That isn’t protection. That’s alienation disguised as compassion.
The Statutes Do Not Authorize Silencing Children—Children Deserve to Have Courts to Hear Them
The PGAL Statute Was Never Intended To Replace a Child’s Testimony
If the purpose of the Private Guardian ad Litem statute, Utah Code § 78A-2-705, had ever been to substitute a child’s testimony with the PGAL’s “recommendations” or “disclosures,” the Legislature could have said so in plain terms. It didn’t—because that was never the purpose. The statute contains no language authorizing a PGAL to act as a witness, no hearsay exception for the PGAL’s summaries, no provision empowering courts to treat those summaries as evidence, and nothing that prohibits the child client from testifying.[2]
A PGAL Is Counsel, Not a Witness
The PGAL statute defines a representation role, not a replacement role. A PGAL is counsel for the child—bound by the same evidentiary and ethical limits as any attorney. The duty to “disclose the intent and desires of the minor” mirrors every lawyer’s duty to communicate a client’s position, not to testify about it. Nothing in § 78A-2-705:
· transforms advocacy into evidence or permits unsworn narrative to stand in for sworn testimony; or
· empowers a PGAL or a court to forbid a child from testifying simply for being a child
To treat the PGAL’s statements as a lawful substitute for the child’s voice is to invent authority the Legislature never granted. The PGAL statute was never intended to silence a willing child witness or to replace authentic evidence with a second-hand interpretation of it. Its purpose was to amplify a child’s access to counsel—not to erase the child’s participation in factfinding.
Transforming Advocacy into Evidence Subverts Legislative Intent
To treat a PGAL’s statements as a lawful substitute for testimony is to invent authority the Legislature never granted. That would confuse advocacy into evidence and procedure into pretense. The statute was never meant to silence a willing child witness or to convert the child’s voice into a lawyer’s unsworn paraphrase. Its purpose was to provide representation for children who needed but otherwise lacked it—not to erase their participation from the fact-finding process.
The Plain Text of § 81-9-204(5) Protects Children from Compulsion, Not Expression
Nor does Utah Code § 81-9-204(5) change the analysis. Some cite § 81-9-204(5) as though it bars children from testifying in any form, but its text reveals otherwise. It restrains compulsion, not voluntariness, providing that a child may not be required to testify unless (1) extenuating circumstances exist and (2) there is no other reasonable method to present the child’s testimony. That provision limits compulsion, not voluntariness. § 81-9-204(5) was designed to protect children from unnecessary exposure to adversarial stress, not to prohibit those who wish to be heard from speaking. And the “reasonable method” clause presupposes reliability and transparency—qualities absent from the PGAL’s unrecorded, unsworn summaries.
Legislative Silence Reflects Restraint, Not Prohibition
If § 81-9-204(5) were truly intended to silence children altogether, it would have stated so in unmistakable terms—just as the Legislature has done in other contexts where it sought to bar certain testimony outright. The absence of such language reveals legislative restraint, not prohibition. The statute strikes a balance: it protects children from unnecessary exposure to the adversarial process, but it does not authorize the substitution of hearsay and conjecture for direct, verifiable evidence.
Child-Sensitive Procedures Should Facilitate Testimony, Not Eliminate It
Reading § 81-9-204(5) as a total ban on child testimony distorts both the text and the policy it embodies. It would create a class of litigants—children—whose voices are systematically excluded from decisions that define their daily lives. That is not protection; it is disenfranchisement. Courts can and should adopt child-sensitive procedures—private, recorded interviews, structured questioning, remote testimony—but those mechanisms exist to make testimony humane, not to eliminate it.
§ 81-9-204(5) is a shield, not a gag—a commitment to transparency, not a license for opacity. It protects children from unnecessary compulsion, but it does not justify silencing those who wish to be heard or replacing their words with someone else’s version. Any interpretation that treats § 81-9-204(5) as a ban on child testimony violates not only the statute’s text but the fundamental due-process premise that decisions about children should be informed by their own voices, not by hearsay about them.
Section 81-9-204(5) and § 78A-2-705 Work Together, Not at Cross-Purposes
Properly read together, §§ 78A-2-705 and 81-9-204(5) complement one another. The first ensures that children have competent legal advocacy; the second ensures that testimony from a willing child witness is handled with due sensitivity and restraint. Nothing in either statute suggests that a PGAL may replace the child as a source of evidence or that a court may avoid hearing directly from a capable, willing child. To the contrary, read harmoniously the two provisions create a coherent policy: children are entitled both to protection and to a voice when they are the subject of child custody and parent-time disputes. The PGAL’s duty is to safeguard that process—not to silence the participant. Any other interpretation that treats the PGAL as a stand-in witness or treats the statutes as a gag rule converts laws designed for transparency and dignity into instruments of concealment.
Silencing a Child Undermines Due Process and Judicial Integrity
Silencing a child whose welfare is at stake offends more than statutory intent—it undermines the integrity of the judicial process itself. Due process demands that decisions be made on evidence that is reliable, reviewable, and subject to testing in the crucible of transparency. When a court bases its findings on an adult’s unsworn interpretation of what a child supposedly said, the fact-finding process collapses into faith rather than proof. The child loses the right to be known; the parties lose the right to contest; and the court loses the ability to discern truth from narrative. Neither § 81-9-204(5) nor § 78A-2-705 authorizes that abdication. Both can and should be read to protect children while preserving their right to be heard. Justice for a child cannot be done behind closed doors or through another’s voice—it must rest on the child’s own words, spoken with dignity and recorded for all to see.
Silencing a child whose welfare is at stake offends more than statutory purpose; it undermines the best interest standard and due process itself. Courts are duty-bound to base their findings on evidence that is reliable, reviewable, and subject to challenge. When a court relies on an adult’s unsworn interpretation of what a child supposedly said (because there is no record of what the child actually said), the fact-finding process collapses into faith over fact, presumption over proof. The court knowingly deprives itself of its ability to divide fact from mere claim and assertion. Neither § 78A-2-705 nor § 81-9-204(5) authorizes that abdication. Both statutes can—and must—be read to protect children from real (not speculative) harm while preserving the right to hear from them, in their own words, on the record for review.
What’s Really Behind the Resistance to Child Testimony?
Courts often resist letting children testify, but the reasons are more emotional than empirical.
Judicial discomfort.
Judges understandably dislike watching a child express a custodial preference. It’s awkward and sad. But avoiding that moment doesn’t serve justice—it merely spares the adults from feeling uncomfortable. Besides, framing child testimony as expressing nothing but “a custodial preference” disingenuously mischaracterizes the depth and breadth of what child testimony provides the factfinder.
A child’s testimony furnishes far more than a binary preference between parents. It allows the factfinder to perceive the child’s reasoning, emotional tone, consistency, and capacity for independent thought—the very qualities that reveal whether expressed wishes are authentic, reasonable, coached, fearful, or conflicted. Through direct testimony, a judge can assess how the child describes daily life in each household, the routines, the sources of comfort and stress, the quality of communication with each parent, and the child’s understanding of events that adults have disputed. It can illuminate patterns of manipulation, neglect, or genuine affection that no third-party summary could accurately convey.
A child’s words, phrasing, and demeanor often disclose the underlying emotional climate: whether the child speaks with anxiety or confidence, whether affection for one parent coexists with fear of disappointing the other, whether the child’s accounts are spontaneous or rehearsed. These subtleties are indispensable in evaluating credibility—not just of the child, but of both parents. Testimony also helps the court gauge developmental maturity, resilience, and coping mechanisms—factors that inform what custody or parent-time arrangement will truly serve the child’s long-term welfare.
In short, child testimony, when properly elicited and recorded, gives the court the direct, unfiltered window into the child’s lived reality. It supplies context, nuance, and corroboration that no guardian ad litem, therapist, or evaluator can replicate. It transforms conjecture into evidence and ensures that custody and parent-time decisions rest not on adult assumptions about the child’s world, but on the child’s own experience of it. Judicial discomfort cannot outweigh that obligation. The court’s duty is not to shield itself from the emotional weight of a child’s testimony, but to face it. Only by confronting it directly can the court fulfill its mandate to make custody and parent-time determinations grounded in evidence rather than inference, and in reality rather than assumption and conventional wisdom.
Outdated assumptions.
The notion that children are inherently unreliable witnesses is a holdover from a bygone era. Today’s law recognizes children as percipient witnesses when they are competent to communicate what they’ve experienced.
Fear of “choosing sides.”
Some judges worry that hearing from the child will make it appear that the court is letting the child “decide.” That is plainly not true. The court remains the ultimate decision-maker and thus should make that decision with the benefit of full, unsullied, direct evidence.
Misuse of parens patriae.
The doctrine empowering courts to protect children from harm has been distorted into an excuse to exclude them from weighing in on custody and parent-time rulings—when it is the children who have the greatest stake in the outcome. Silencing a child who wants to be heard isn’t protection, it’s cowardice and/or apathy masquerading as compassion.
A court tasked with making child custody and parent-time orders “in the best interest of the child” cannot perform that task competently without knowing the child’s perspective. The law already provides tools that respect both due process and human dignity.
The Better Way: Transparent, Recorded, and Reviewable
Courts do not need to rely on private guardians ad litem as supposed mouthpieces for children capable of expressing themselves. There are better, fairer, and more reliable ways to hear from children than through secondhand summaries that no one can verify or cross-examine. The law already equips courts with tools that preserve both truth and compassion—methods that let children be heard in their own words, on the record, and without distortion.
- Judicial interviews. Conducted in camera, on the record, and preserved for review. Judges can ask neutral questions and can assess demeanor firsthand.
- Depositions or affidavits. When appropriate, counsel can conduct structured, age-appropriate questioning on the record.
- In-court testimony. With common-sense protections (no harassment, breaks as needed), many children can safely and effectively testify.
These methods are transparent, proportional, and legally sound. They also maintain the integrity of the evidence and allow the court to see and hear the child’s own words—without translation.
When PGAL Appointment Might Make Sense
There are limited situations where a PGAL can serve a legitimate purpose—such as when a child is too young to communicate meaningfully, when testifying would clearly traumatize (not merely upset) the child, or when a child refuses to speak at all. But these are exceptions, not the rule. There is no credible basis for presuming that children must be “shielded” from participating. The far better policy is that children are entitled to be heard unless compelling, individualized evidence shows otherwise.
Silencing a Child Is Never Advocacy and Never in the Child’s Best Interest
To meet its obligation to rule in the child’s best interests a court must begin by hearing from the child, if and when the child wants to be heard.
The PGAL system was meant to protect children, but far too often it functions as a pointless bureaucratic replacement for the child’s own voice. Courts congratulate themselves for “protecting” children from the “trauma” of testifying without thought for having deprived those same children of truly being heard. Utah law doesn’t require that. It never has.
The better, fairer, and more honest approach is simple: listen to the child directly, on the record, whenever reasonably possible. If the law’s purpose is to serve the child’s best interests, then the law must first let the child speak. That enables the factfinder to assess credibility rather than to speculate about it.
The presumption should be that Utah courts hear from minor child witnesses directly—through recorded judicial interviews, depositions, or testimony—unless clear and compelling evidence shows that doing so would cause the child more harm than good. Protecting children should never mean silencing them.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] See, e.g.:
Carolyn Savoury, “A Voice for “The Small”: Judicial “Meetings” in Custody and Access Disputes” (2014) 28:2 Can J Fam L 225;
Birnbaum & Bala, Judicial Interviews with Children in Custody and Access Cases: Comparing Experiences in Ontario and Ohio, International Journal of Law, Policy and the Family, Volume 24, Issue 3, October 2010, Pages 300–337, https://doi.org/10.1093/lawfam/ebq011
Birnbaum, R., & Saini, M. (2012). A Qualitative Synthesis of Children’s Participation in Custody Disputes. A Qualitative Synthesis of Children’s Participation in Custody Disputes, page 19 (Original work published 2012).
[2] Utah lawmakers know how to craft evidentiary exceptions when they mean to; they have done so in other parts of the Code, such as the juvenile-court provisions that allow limited child-hearsay in verified abuse or neglect proceedings. The absence of a bar to the child client testifying is not accidental.