There is a pervasive, almost religious orthodoxy in family law litigation over child custody and parent-time that goes something like this: “We must protect the children. Therefore, we must never hear from them.” Courts intone this mantra reflexively, without evidence or analysis.
This sentiment is often delivered with a grave, pious nod, as if excluding a child from the legal process is the ultimate act of parental benevolence and judicial wisdom. We treat children involved in custody and parent-time disputes as fragile glass figurines—objects to be argued over, shuffled between houses, and “protected” inside a bubble of silence.
But let’s call this what it far too often is: some courts default to silence because the system rewards risk-aversion and docket management. Some courts indulge in lazy thinking masquerading as compassion, apathy masquerading as judicial detachment.
The idea that we should “protect” children by preventing them from contributing to the discussion and process is not a virtue. It is a dereliction of duty. Excluding the most percipient witness is incompatible with any legitimate fact-finding function. In any other area of law, excluding the most percipient witness, the one person with some of the most direct knowledge of the facts, and the one with the greatest stake in the custody and parent-time rulings’ outcomes, would be considered malpractice. Yet in family law, we call it “best interest of the child.”
It is time to challenge 1) the ridiculous notion that children cannot effectively be questioned to elicit crucial evidence that is vital to making truly informed child custody and parent-time orders, and 2) the baseless assumption that interviewing them is inherently, absolutely, and inexorably traumatic.
The Irony of “Best Interest”
The legal standard (which is not really a standard, but I’ll defer to Donald Hubin to explain that) is the “best Interest of the child.” Yet, a court cannot credibly claim to have determined a child’s best interest by refusing to hear and consider the child’s own account of material facts, his/her experiences, observations, feelings, desires, opinions, and preferences (and the bases for those preferences).
Absent credible evidence of actual real risk or actual real trauma, normal children are the best witnesses to what happens in their own lives when the parents are divorcing and when they are separated. They know who helps with homework, which parent may lose his/her temper and/or get violent, who is emotionally available, and who is checking out. To determine a child’s future without hearing the child’s testimony is akin to a doctor diagnosing a patient without ever asking, “Where does it hurt?”
When we gag children under the guise of protection, we are not shielding them from harm; we are shielding the court from the hard work of discernment. We are prioritizing the system’s comfort over the child’s truth. Factfinders have an affirmative duty to make reliable findings; insulating themselves from testimony undermines that duty.
The Lie of “Inherent Trauma”
There is a prevalent myth lie that the mere act of questioning any child who is the subject of a child custody and/or parent-time dispute (whether in a deposition, an in camera interview, or open court) is an act of psychological or emotional abuse.
Where is the evidence for this?
Where is the compelling research proving that a respectful, well-structured inquiry into a child’s experiences is more damaging than the feeling of utter helplessness that comes from being ignored?
Stop collapsing ‘questioning’ into ‘abuse.’ That categorical error distorts the issue and undermines responsible adjudication. That false equivalence protects no child; it only shields adults from the hard work of real fact-finding. It distorts the issue and disables the very process meant to protect and subserve the best interests of children.
Trauma is context-dependent, not inherent. Trauma that children suffer in divorce cases usually stems from the conflict between the parents, not the opportunity for a child to speak. In fact, for many children, being silenced is what does them harm. Being treated as a pawn, subject to orders made by a judge or commissioner who has never met them, creates a sense of powerlessness and despair.
Children can experience distress by testifying, but that must be weighed against the harms of silence and the availability of safeguards.
The choice of method is distinct from the safeguards applied; courts can tailor protections under Rules 403 and 611 without eliminating testimony altogether. The method of obtaining testimony and the safeguards used to protect the child are separate inquiries. Whether testimony comes through deposition, in-camera interview, or open court, the resourceful “can do” court can and should apply tailored protections, not blanket prohibitions masquerading as compassion or the “abundance of caution” copout. Adjusting the setting, the pacing, or the form of examination to shield the child from unnecessary distress without suppressing the child’s evidence outright, benefits all participants. Silencing a witness is not protecting him.
Reclaiming Cross-Examination
Let’s address the elephant in the room: Cross-examination.
Conventional wisdom shudders at the thought of a child on the witness stand. We imagine a Hollywood-style prosecutor screaming at a six-year-old until he cracks. But simply claiming that cross-examination must be aggressive, intimidating, and frightening does not make it so.
Cross-examination is a tool for truth-seeking. It does not require aggression; it requires skill.
Can a child be deposed? Yes.
Can a child testify in open court? Yes.
Can a child be interviewed by a judge? Yes.
Unless it can be proven that a specific method is irreparably harmful in a specific case, we should not presume it is off the table. The standard should not be a blanket ban on testimony. The standard should be: gather the evidence in the most effective, reliable way, while taking pains to prevent harm, if any, as much as reasonably possible in the process.
We question vulnerable adult witnesses, victims of trauma, the elderly, and yes, even minor children in parental rights and delinquency proceedings with sensitivity and tactical precision. We are certainly capable of doing the same for children in child custody and parent-time disputes.
The evidentiary rules already supply the mechanism for protecting child witnesses without suppressing their voices. URE (Utah Rules of Evidence) Rule 611 empowers courts to control the manner of questioning to prevent intimidation or embarrassment, while still ensuring that testimony contributes meaningfully to fact-finding. And URE Rule 403 demands case-specific balancing: testimony is excluded only when the risk of harm substantially outweighs its probative value. A categorical refusal to hear from children is therefore not a cautious application of the rules, it is a departure from them.
Fear and Apathy Disguised as Virtue
Why, then, is the resistance to child testimony so entrenched? Not because the evidence shows it is harmful, but because the system finds it inconvenient.
- Fear of Complexity: Child testimony introduces nuance. Nuance forces judges and lawyers to grapple with inconsistent narratives, developmental context, and fact patterns that don’t fit into “standard” custody templates. Silencing the child is a way to flatten the case so it can be processed, not understood.
- Deficits in Training: Some lawyers and judges may feel they do not know how to question a child appropriately under Rule 611 safeguards. Instead of acknowledging that gap and filling it, professionals invoke this lack of skill (and “trauma” for good measure) as a catchall rationale for avoiding the task. The problem is not (and never has been) that child questioning is impossible or inexorably traumatic for the witness.
- Narrative Control: A child who testifies is the one witness neither parent can fully script. For a parent who has been shaping the narrative (subtly or overtly) a child’s unfiltered account is the variable most likely to expose manipulation, misconduct, or simple dishonesty.[1] The opposition to child testimony therefore often has less to do with protecting the child than with protecting an adult’s litigation strategy.
The Path Forward
We need to stop viewing the questioning of children as a failure of protection. Instead, we must view it as a triumph of due process.
We must embrace a method-agnostic approach. Whether it is an in camera interview, a deposition, or testimony in open court, the focus must be on carefully eliciting honest, substantive testimony from the child witness.
Strip away the sentimental veneer that the legal system uses to justify silencing children. We will argue that refusing to question children is often an abdication of duty by the court and legal counsel—a choice that prioritizes the comfort of adults over the rights of the child to be heard.
We must stop disingenuously crying “trauma!” to justify the lazy, cowardly, and apathetic refusal to obtain crucial testimonial evidence from the children who are the subjects of custody and parent-time litigation. Children are resilient, observant, and often eager, even desperate, to be heard. It is time the legal system stopped patting itself on the back for silencing them and started doing the necessary (not even all that hard) work of listening.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Even if a child’s testimony turns out to be coached, bribed, coerced, or otherwise tainted, that is not a reason to suppress the child’s testimony, it is the very reason the testimony must be taken. The fact of undue influence is itself highly probative: it reveals who is manipulating the child, how deeply the manipulation has taken hold, and what impact it is having on the child’s stated preferences and well-being. It illuminates parental misconduct, speaks directly to credibility and reliability, and helps the court distinguish authentic child experience from engineered narratives. In short, discovering corruption of testimony is not a failure of the process; it is evidence that goes to the heart of any custody and parent-time determination.