Utah law allows a child to be represented by an attorney—either a guardian ad litem (GAL) when there are allegations of child abuse, or by a private guardian ad litem (PGAL) in custody and parent-time disputes. But here’s the part courts, commissioners, and GALs sometimes “forget”: nothing in the Utah Code prohibits a child from testifying in a child custody or parent-time dispute case simply because a PGAL has been appointed.
That restriction does not exist. It has never existed.
A PGAL’s Appointment Does Not Muzzle the Child
Some PGALs (and those courts who love to appoint PGALs) sell the idea—implicitly or explicitly—that once a PGAL is appointed, he/she becomes the child’s “voice,” and the child is no longer permitted to speak for himself. Not true. Not good.
A PGAL is counsel, not a ventriloquist. A PGAL represents the child’s legal interests; a PGAL is not a witness (can’t be) and certainly not a substitute for the child’s own testimony.
If a child represented by a PGAL says, “I want to testify,” the lawful response is simple: the child testifies.
The PGAL’s role at that point is limited to conveying that desire to the court, not discouraging it and certainly not pretending he or she has the power to prohibit it. Utah law gives the PGAL no such authority.
Courts Cannot Bar Child Testimony Simply Because They Don’t Want to Hear It
Utah courts sometimes sidestep child testimony not through law, but through preference.
- “I don’t like kids testifying.”
- “It’s too uncomfortable.”
- “It might cause the child stress.”
- “That’s the PGAL’s job.”
- “Children aren’t reliable witnesses”/“What if the child was coached (even though I have no idea because the child hasn’t been questioned)?”
These are personal opinions and feelings, not legal standards.
A court cannot bar a competent witness—child or adult—because the judge doesn’t feel like hearing from them. A court cannot declare, in advance, without evidence and without testimony, that a child is incompetent or unreliable. That is prejudgment based on pure speculation. And yes, Utah courts have done exactly that. I’ve watched it happen. It’s inexcusable.
“Good Motives” Don’t Give Anyone Permission to Ignore the Law
Judges and PGALs often justify suppressing child testimony with noble rhetoric:
- “We’re protecting the child.”
- “We’re trying to prevent/reduce trauma.”
- “We’re preserving family harmony.”
That sounds compassionate. But it does not change the law or the rules of evidence.
You cannot claim to protect the child by preventing the factfinder from hearing the child.
And you cannot turn “I think it’s a bad idea” (translation: 1) I’m speculating to come up with a reason to bar child testimony; or 2) The last thing I want is for this child’s testimony to be known) into a legal basis for censorship.
If a child wants to testify, and the child is competent, and the testimony is relevant, the court must hear it—in a lawful, child-appropriate[1] manner (in-camera, recorded interview). What the court may not do is suppress it simply because the adults in the room would rather not deal with what the child has to say.
“I Don’t Want to Hear From the Child” Is Not a Legal Standard
Too many courts decide, consciously or not, “I’d rather not hear from kids,” and then work backward to justify that decision. That’s not law. That’s avoidance.
And it’s indefensible.
Courts know what the law requires. They know that the right to present relevant evidence is fundamental. They know that speculation about “trauma” or “stress” is not a universal bar to testimony (for child and adult alike). But some courts test whether they can get away with silencing the witness to suit the convenience of the court. Let’s call that what it is: judicial misconduct dressed up as child protection. That’s not protecting the child. That’s not applying the law. That’s nonsense.
The idea that “the PGAL’s job is to speak for the child” is sleight of hand masquerading as sound policy.
While an attorney “speaks for” a client in the ordinary advocacy sense, that has never meant the attorney can speak in place of the client in a testimonial sense.
Utah law does not authorize any guardian ad litem to act as a proxy witness. A PGAL is counsel, nothing more, nothing less. A lawyer’s impressions, summaries, or characterizations of what a child supposedly said are not evidence, are not testimony, and cannot lawfully substitute for the child’s own account. They simply can’t without making a mockery of the rules of evidence and of due process.
Treating a PGAL as a stand-in witness for his or her own client undermines the rules of evidence and the very purposes those rules exist to serve. Having the PGAL “disclose” the child’s “intent and desires” without any actual record of the child’s words that articulate his intent and desires hides the child’s statements from the factfinder and invites reliance on what is—accurately—nonevidence. If the child has relevant, probative information, only the child—not the PGAL—can provide it, and to provide it he must do so directly, personally, and on the record.
The Obligation to Hear Relevant Testimonial Evidence—Even When It’s Inconvenient
If a child has relevant, probative knowledge about custody, parent-time, safety, or daily life with either parent, that child is often the only firsthand witness to many of the facts in dispute (particularly, though not exclusively, as it pertains that to that individual child). That kind of testimony really matters. Suppressing for convenience’s sake while framing it as “child protection” is not just wrong—it leads to uninformed, defective decisions.
Even if every adult in the courtroom believes kids testifying in their own child custody and parent-time cases is a terrible idea, that doesn’t make the mob’s position right.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] And “child appropriate” is not synonymous with “child-muzzling”.