Utah Code § 78A-2-705 provides that
(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:
(a) child abuse, child sexual abuse, or neglect is alleged in any proceeding, and the court has made a finding that an adult party is not indigent as determined under Section 78B-22-202; or
(b) the custody of, or parent-time with, a child is at issue.
A PGAL is an attorney who represents the child. That’s it. Nothing in the statute authorizes a PGAL to function as a witness, an expert, an investigator, or a substitute for sworn testimony of the child witness. Yet that is exactly what Utah courts have allowed PGALs to become. Today’s actual PGAL practice is so far removed from the statutory text and the Utah Rules of Evidence that it is arguably ultra vires.
Courts have effectively created an pseudo-evidentiary chimera that exists nowhere in the law: a non-witness whose claims are treated like fact despite not being evidence, not being sworn/affirmed, not being verifiably/reviewably recorded, and not being subject to cross-examination. I know of no other area of law tolerates this level of evidentiary sloppiness.
Let’s break down how we got here and what it costs children, parents, and the legal system.
Role Confusion and Unauthorized Expansion of Authority
The PGAL statute makes the PGAL a child’s lawyer. Yet courts routinely and erroneously allow PGALs to operate as:
- Hearsay witnesses (recounting what the child allegedly said),
- Non-expert “experts” (giving opinions about the child’s safety or preferences), making factual claims and offering opinions with no expert qualifications, no objective data, and no methodology).
And let me be unequivocal: custody evaluators are not the fix. They suffer from the same foundational flaws—unrecorded interviews, unverifiable impressions, hearsay dressed up as “clinical formulation,” and recommendations treated as gospel despite lacking evidentiary integrity. The problem is not who performs the role. The problem is the role itself. No one—PGAL, evaluator, therapist, or anyone else—should be permitted to smuggle unverified assertions into court and have them treated as fact.
Yet courts routinely rely on unverified/unverifiable PGAL “disclosures” and “recommendations” under § 78A-2-705 as if they were evidence. They are not. They are unsworn narratives and mere argument from a lawyer.
Calling hearsay a “disclosure” doesn’t change its hearsay nature or cure its inadmissibility as evidence. It’s still hearsay, but in official disguise. Treating a non-expert’s “recommendations” as evidence is treating mere legal argument as fact instead of looking to actual fact in the record.
The Hearsay and Cross-Examination Problem
Consider an all too common scenario: a PGAL reports to the court, “The child expressed fear of Mom/Dad,” or the even subtler variation, “The child is afraid of Mom/Dad.” That statement is hearsay[1]—unambiguous, unqualified, and untested.
Yet no recording exists. No transcript exists.
No sworn testimony on the record from the child exists—because the court prohibits it.
Impeachment under Utah Rule of Evidence 806 is categorically unavailable.
The PGAL cannot be cross-examined, because the PGAL is not treated as a witness.
On appeal, the record contains nothing to challenge because nothing that satisfies the definition of evidence was ever technically admitted. The ruling becomes effectively insulated from review.
This is not child advocacy. It is the evisceration of evidentiary safeguards. It is the creation of a due-process vacuum in which unverified assertions masquerade as facts—without confrontation, without reliability testing, and without accountability.
No Record = No Accountability
I have never encountered a PGAL who record interviews with his/her child clients.[2] Some do not interview the children at all. But because nothing is required to be documented, the court cannot know—and does not ask—and essentially does not care—what was done, how, or whether it was competent or impartial. A system without a record is a system without accountability.
Imagine a police interrogation with no recordings, no witnesses, no chain of custody, and no cross-examination of the officer. Any judge would throw that evidence out immediately. But when a PGAL does it, courts not only allow it—they rely on it.
We cannot pretend to be a system of law while inviting and operating needlessly on unexamined faith.
Structural Incentives: Why Courts Rely on PGALs
Let’s be candid: the current PGAL regime benefits courts by:
- shortening hearings and the proceedings overall.
- seemingly eliminating the need to hear directly from children.
- seemingly shifting uncomfortable factfinding from the bench to the PGAL.
- giving the judge political cover: “I relied on the child’s lawyer.”
But judicial convenience does not override statutory limits or constitutional rights.
The “Trauma” Myth
Courts often justify excluding child testimony in a child custody and/or parent-time dispute by claiming it “traumatizes” the child. But there is no credible evidence to support this claim. Instead, the trauma narrative has become a self-protective fiction:
“If testifying might be traumatic, we won’t allow it; because we never allow it, we assume it must be traumatic.”
Meanwhile:
- being misrepresented (if represented at all);
- being silenced; and
- having adults decide your fate based on unverified hearsay
is traumatic.
A carefully structured, sheltered, recorded interview in camera is patently less distressing than relying on an unaccountable[3] PGAL summary.
And there is obviously a vast difference between irreparable harm and the ordinary, proportionate discomfort necessary to produce reliable evidence.
The Incoherence of Treating PGALs Differently From Real Witnesses
All real witnesses—expert or lay—must:
- produce the data they rely on,
- testify under oath or affirmation, and
- submit to cross-examination.
While some (some) PGALs disclose/share the evidence they rely on (and in the form of admissible evidence), none of them can testify (PGALs are not witnesses), and so they cannot be cross-examined either. Yet courts treat PGAL “disclosures” and “recommendations” like evidence. That is not coherent. It is not lawful. It is not defensible.
Statutory and Rule Drift: An Ultra Vires System
Nothing in Utah Code § 78A-2-705 authorizes PGALs to act as experts or as substitutes for the child client’s testimony. The system we have today is the product of bad judicial habit that has developed over the past few decades, not statutory authority. When a practice contradicts both statute and evidence rules (801, 802, 602, 603, 806), it is not “evolution.” It is deterioration. It is action without authority.
The Solution: Reminder and Reform Is Necessary and Achievable
The cure is not to abolish PGALs but to reign in PGAL overreach (at the level of both the PGALs themselves and at the level of the courts that allow them to act improperly with such impunity) and return them to their lawful role of advocate; no more, no less.
Here’s what reform requires:
- Record all child interviews. No record = no reliability = no review.
- Allow and normalize child testimony. Use in camera testimony, video-recorded statements, and/or structured judicial interviews.
- Stop treating PGAL statements as evidence and stop acting as though you don’t know what I’m talking about. If it matters, it must come from a witness testifying under oath or affirmation, on the—verifiable, reviewable—record, and subject to cross-examination.
- Prohibit PGALs from functioning (or trying to function) as witnesses or as substitutes for the child witness. They are neither.
- Prohibit PGALs from functioning (or trying to function) as custody evaluators. PGALs are not experts.[4]
- Judicial reform: Courts must cease and desist from the impermissible evidentiary shortcuts.
- Legislative reform: Clarify statutory limits and impose mandatory recording requirements.
This kind of reform is realistic, not radical.
Utah’s PGAL system is not failing just because of its bad actors. It is failing because it has become structurally incapable of producing reliable, verifiable, reviewable information, yet courts rely on it as if it does. Judges cannot sidestep the law and the rules of evidence out of habit or convenience or even an ostensible desire to help children. Corrective reform is as easy as and as necessary as it is overdue.Children and parents and the public at large all deserve accuracy and due process in child custody and parent-time disputes.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] The PGAL’s utterance — “The child is afraid of Mom/Dad” — is an assertion offered to prove the truth of the matter asserted: that the child actually holds that fear.
Whether framed as “the child said he is afraid” or “the child is afraid,” the PGAL is still relaying an out-of-court communication or an out-of-court perception attributed to the child. Both are hearsay unless the child testifies or a valid hearsay exception applies.
Courts do not allow parties to circumvent the hearsay rule simply by rephrasing “the child said X” into “the child feels X” or even “The child exhibits X.” That is a distinction without meaningful difference when the only claimed basis of knowledge is an unrecorded interview.
[2] Any such recordings for use in court would require the child client’s advance consent (and verification thereof), of course, but that’s all academic when PGALs zealously oppose child testimony.
[3] See Utah Code § 78A-2-705(15): “A private attorney guardian ad litem appointed under this section is immune from any civil liability that might result by reason of acts performed within the scope of duties of the private attorney guardian ad litem.”
[4] Frankly, UCJA custody evaluators are not real experts either, and they are running amok for the same reasons PGALs are, but I digress (and this is a subject of another post).