Utah Law Does Not Support a Categorical Bar to Child Testimony
Utah’s custodial statute expressly contemplates judicial inquiry into a child’s views. Section 81-9-204(5)(b)(i) provides that “the court may inquire and take into consideration the minor child’s desires” regarding custody or parent-time. Section 81-9-204(5)(c)(ii) adds that the court may interview the child without parental consent if that interview is the only reliable way to ascertain the child’s desires. If a child’s preferences matter—and the statute says they do—then testimony or interview from the child is the only fair, reliable, and sensible mechanism for determining them.
Nothing in Utah law presumes children are incompetent witnesses. Utah Rule of Evidence 601 starts from the opposite premise: every witness is competent unless shown otherwise. There is no child-specific exclusion. Nor does youth alone render a witness incredible, and a court may not substitute generalized assumptions about suggestibility for an evidence-based assessment of reliability.
A statute that directs the court to ascertain and consider a child’s views cannot be construed to authorize a categorical rule forbidding the court from receiving the child’s own account of those views. Although judges determine what outcome is in the child’s best interest, they do not generate the underlying facts themselves. When the child is one of the best—often the best—sources of those facts, the court cannot credibly claim to know what is best while declining to hear the evidence necessary to make that determination.
Due-Process Principles Weigh Against Exclusion
- Courts cannot refuse competent, relevant evidence.
- Children are often the only percipient witnesses to parenting dynamics, safety concerns, daily routines, and their own preferences. Excluding such evidence impairs the court’s ability to make accurate findings.
- Litigants have a right to present evidence.
- A party cannot win or lose the child custody and parent-time arguments based on one-sided evidence while being barred from calling the witness who can rebut it. Blanket exclusions deny probative testimonial evidence a meaningful opportunity from being considered.
- Courts cannot rely on hearsay while excluding the declarant.
- PGAL “disclosures” (whatever that means), therapist impressions, school-counselor notes, and DCFS records all relay what the child allegedly said without any way to verify or cross-examine. Permitting these indirect accounts while silencing the child creates an evidentiary imbalance and conflicts with basic fairness principles. If the child’s statements matter, the proper source of those statements is the child.
III. Policy Concerns Do Not Justify a Blanket Ban
Policy arguments typically reduce to three claims: (1) testifying is harmful, (2) children should not feel responsible for outcomes, and (3) judges are intimidating. None justify categorical exclusion.
The “harm” concern is usually misdefined. No Utah statute, rule, or case holds that testifying to factual matters is inherently harmful. In the context of child testimony, legally cognizable “harm” means a substantial, reasonably probable risk of significant psychological injury caused by the testimonial process itself—something specific, demonstrable, and clinically supported. General stress, discomfort, awkwardness, or adult unease does not meet this threshold. Nor do conventional wisdom or generalized ‘common-sense’ assumptions qualify as the type of evidence-based showing required to justify excluding a competent witness just because he/she is a child.
Retaliation risk is not a basis for exclusion. Retaliation (if it occurs) flows from a parent’s misconduct, not from the child’s testimony. Courts do not limit an innocent witness’s access to the process in order to preempt the possible unlawful conduct of a parent who may choose to retaliate; the law bars the misconduct, not the child testimony. Speculative claims of risk cannot justify suppressing relevant evidence. If the risk is real, the remedy is protective action—supervision, protective orders, anti-retaliation injunctions—not silencing the witness. Moreover, a child’s fear of retaliation is itself probative evidence of coercion and parenting deficits the court must evaluate and thus needs to hear the testimony of the child in that regard.
“Children should not feel responsible for the outcome.” Testifying does not make a child responsible for the court’s decision. Judges routinely remind us that the court—not the child—decides. Excluding the child’s voice can produce the opposite problem: a sense of being excluded from having any influence on a decision in which the child has the greatest stake, a decision that shapes the rest of the child’s life. Denying a child the opportunity to testify because “children should not feel responsible for the outcome” is a weak excuse.
“Judges are intimidating.” Says who? The people who don’t want the child to testify. Utah’s statutory framework explicitly authorizes judges to interview children in camera, a less formal and less intimidating environment than a courtroom. Besides, there is no evidence that substituting a PGAL, therapist, or custody evaluator eliminates perceived authority-figure pressure; to a child, all are adult participants in the child custody and parent-time litigation. Structure the interview to address and resolve any concerns over witness intimidation, but don’t bar the witness’s testimony altogether.
PGAL involvement is not a substitute for evidence. A PGAL is an advocate, not a witness. A PGAL cannot give testimony about the child’s statements without engaging in hearsay. If the court wants reliable evidence of the child’s experiences or preferences, the child—not the PGAL—is the best source by every measure.
Only Case-Specific Limits Are Defensible
Courts may limit a child’s testimony when:
- the child is legally incompetent to testify;
- the testimony is irrelevant;
- the testimony is cumulative;
- the testimony would cause specific, clinically supported psychological harm; or
- equally reliable, less intrusive means (such as a structured in-camera interview) exist.
None of these conditions supports a categorical rule prohibiting child testimony in custody cases. Generalized proverbs—“children shouldn’t testify,” “judges shouldn’t interview children,” “a PGAL is always preferable”—have no grounding in statute, in the rules of evidence, or in reason.
In custody and parent-time litigation, the child occupies a position no other witness can replicate. It is axiomatic that only the child can bear his own witness. Moreover, the child is often the only percipient witness to the lived dynamics the court must evaluate for that child—parent-child interactions, conditions, concerns, and preferences. No other source can fully substitute for that unique and first-hand perspective. It is difficult to imagine a real-world circumstance in which the testimony of a competent, willing child witness could be honestly deemed unnecessary or properly excluded.
A court may structure the manner, scope, and setting of a child’s testimony to ensure accuracy and reduce unnecessary distress. Utah law specifically authorizes in-camera judicial interviews for this purpose. But the court may not suppress the testimony of a competent child witness possessing relevant, probative information. Categorical bans conflict with statute, evidence rules, and due process guarantees. The legally and morally sound approach to obtaining full, reliable information about a child’s experiences and preferences lies in hearing from the child’s in his own voice, not silencing that voice.
Utah Family Law, LC | divorceutah.com | 801-466-9277