For too long, the family law system in Utah has operated under an almost universal, yet unproven, assumption: that any minor child who is the subject of a high-conflict custody dispute is inherently traumatized by testifying in the case.
This belief that the mere act of having the minor child’s actual voice directly heard will inflict irreparable or undue harm upon the child is the chief barricade preventing judges from accessing highly relevant, factual testimony.
This sweeping generalization treats every child as an emotionally fragile victim, rather than a crucial source of evidence about his/her own life. It fails to distinguish between the divorce itself (the breakdown of the family unit) and the judicial process (the search for a stable path forward).
Research is often cited to show a correlation between divorce and increased anxiety or behavioral issues in children. But correlation is not causation. Many of the measurable negative outcomes are directly tied to long-term factors like inter-parental conflict and animosity, post-divorce economic struggle, or lack of a supportive home environment, not the brief period of time spent speaking to a lawyer or a judge.
When proponents of the “no minor child should testify under any circumstances” policy are pressed for quantifiable, measurable harm tied specifically to the act of testifying, the arguments often retreat to philosophical concepts like “loyalty conflict,” “emotional betrayal,” and “risk of parental retaliation.” While these concepts sound serious, they are difficult to separate clinically from the general stress of a family dissolution. The solution, then, is not to ban minor child testimony categorically. The risk, such as it is, is neither inherent nor uniform across all children and all cases, and it certainly is not so grave or so universal in all (or even most) cases as to justify a blanket prohibition. Whether a child’s testimony is probative, necessary, or potentially harmful is a fact-specific inquiry that turns on the child’s age, maturity, his/her circumstances, the circumstances of the case, and the availability of appropriate safeguards—not a moral abstraction to be resolved in advance by reflexive silencing.
None of this is to suggest that every minor child can or should testify, or that such testimony is appropriate in every case; there are circumstances (based on age, cognitive development, acute vulnerability, or particular case dynamics) where testimony may be inadvisable or unnecessary. But that conclusion must be reached through individualized judgment, not assumed in advance as a universal truth.
We must demand that the field of psychology and its legal advocates provide concrete data, because deference to credentials, jargon, and Emperor’s-new-clothes assertions of harm substitutes authority for evidence (an exercise that convinces no careful court, protects no child, and ultimately serves only to insulate untested assumptions from scrutiny). We need rigorous studies that determine whether the testimony event is a cause of serious distress, separately from all the other stressors inherent in a parental separation. Until they can provide that proof, the claim of “inherent harm” or even “undue risk” is little more than a shield used to keep the child’s own perspective out of the courtroom.
Courts already possess well-developed tools to assess and mitigate risk to vulnerable witnesses, including relevance and prejudice balancing, reliability requirements, and control over the mode and manner of testimony. The categorical exclusion of child testimony is not a principled application of these safeguards, but an abandonment of them, replacing case-specific evidentiary judgment with a blanket presumption untethered from proof.
The current approach infantilizes children and overcomplicates the truth. If a child can testify to witnessing a crime, they can certainly speak to their preference for which parent helps them with homework, or which home feels more stable. Let’s move past assumptions of universal fragility and sensitively focus on gathering probative facts that genuinely serve the child’s best interests.
Blanket bans on child testimony do not protect children; they protect assumptions. By refusing to distinguish between cases, courts silence the very voices most capable of clarifying a child’s lived circumstances and needs, substituting generalized fears for evidence-based judgment. True child protection lies not in categorical exclusion, but in careful, individualized assessment, using the safeguards the legal system already possesses to determine when a child’s testimony is necessary, how it should be taken, and when it should be withheld. A system that treats silencing key witnesses as virtue abandons both truth and the child’s best interests, and it does so without proof that such silencing of the child’s testimony is justified.Utah Family Law, LC | divorceutah.com | 801-466-9277