Appointing a private guardian ad litem in a child custody and parent-time dispute case often creates a closed loop in which children who are the subject of the dispute cannot speak directly to the issues affecting custody and parent-time (i.e., the issues that affect the children directly), and the lawyer appointed to represent the children (the PGAL) claims he/she cannot disclose what children said (attorney-client privilege and/or hearsay). Yet courts nevertheless rely on PGAL “recommendations” derived from alleged information that the PGAL either cannot or will not disclose. This structure silences children, insulates assertions from challenge, and substitutes untestable, non-expert opinion for evidence—all without statutory or evidentiary justification.
This essay does not assert that children be required to testify in every case. But when a court claims to rely on a child’s perspective, that perspective must enter the record through methods that preserve reliability, transparency, and procedural fairness.
There is a neat trick—neat only in the sense that it is cleverly evasive—that occurs with alarming regularity in Utah custody litigation once a private attorney guardian ad litem (PGAL) is appointed. It works like this: the child is declared “represented by counsel,” which means no one may speak to the child directly. But the lawyer who now supposedly represents the child also cannot disclose what the child said, either by invoking attorney-client confidentiality or by having one or both parents object on the grounds of hearsay. And yet the court is still invited to rely on the PGAL’s “disclosures” or “recommendations,” which are, either wholly or significantly, derived from what the child allegedly said.
The child’s voice goes in. Influence comes out. Evidence never appears.
This is not child protection. It is a procedural shell game.
Statutory authorization is often invoked to justify this structure, but it does not do the work people think it does.
When courts rely on recommendations derived from undisclosed, untestable assertions, the parties are deprived of the opportunity to confront, challenge, or contextualize the factual basis for the court’s decision. That is not a matter of style or preference; it is a failure of adversarial process.
Step One: Access Is Cut Off
Once a PGAL is appointed, parents and counsel are told—often sternly—that they may not speak to the child about the case because the child is now represented by counsel. That proposition is not inherently wrong. In ordinary litigation, that rule applies to any party represented by his/her own attorney. But custody cases are not ordinary litigation, and children are not ordinary clients.
The practical effect is immediate: the court forecloses the most direct, transparent way to learn what a child knows, perceives, and desires. No interview by the court. No testimony with safeguards. No recorded statement. Access is denied in the name of protecting the child.
Step Two: Disclosure Is Blocked
The next move is more subtle. If counsel for a parent wants to know what the child actually said, the PGAL invokes attorney-client confidentiality. The PGAL explains that, as the child’s attorney, the PGAL cannot disclose client communications. Sometimes this is framed as ethical restraint; sometimes as professional virtue.
But consider what that means. One of the primary reasons the PGAL was appointed—to convey the child’s perspective—has now been neutralized. The child cannot be heard directly, and the attorney cannot relay the substance of what the child said without either violating attorney-client privilege[1] or the rule against hearsay. The evidence is sealed from the inside.
Step Three: Influence Without Evidence
And yet—this is the crucial point—the court still permits the PGAL to make “disclosures” (Utah Code § 78A-2-705(13)(d)) and “recommendations” (Utah Code § 78A-2-705(14)).[2] These are often treated as weighty, even decisive. Judges routinely ask, “What does the PGAL recommend?” as though that recommendation were evidence rather than argument.[3]
A recommendation untethered from admissible proof is not evidence; it is opinion. Where that opinion rests on child-attributed statements that the court will not permit the child to testify to—or be cross-examined about—the ordinary safeguards of reliability collapse. Although Utah Rule of Evidence 806 theoretically permits impeachment of a hearsay declarant, that protection is rendered illusory when the only declarant with firsthand knowledge is categorically barred from examination. What remains is an opinion built on an opaque factual substrate that no party can meaningfully test, challenge, or verify.
That gap cannot be cured by the private guardian ad litem. A PGAL is not a witness—lay or expert—and does not testify under oath.[4] While Utah law authorizes a PGAL to make disclosures and recommendations, those recommendations are not evidence and cannot substitute for facts established in the record through admissible proof. An opinion that rests on information the court has insulated from scrutiny carries no evidentiary weight, regardless of the PGAL’s designation or intent.
Appellate review is hollow because the record contains nothing to review.[5] This is not how an evidentiary system is designed to function.
The uncomfortable truth is this: appointing a PGAL often functions less as a means of hearing a child’s actual voice than as a way of silencing it—”professionally,” and with just enough legal jargon to make the problem disappear.
Anything else is theater: a performance in which a child is credited with a voice the court never actually hears. Children deserve better than a speaking role written—and delivered—by someone else.
Confidentiality Is Not a License to Bypass Proof
Attorney-client confidentiality serves an important purpose: it protects clients from compelled disclosure of their communications. It does not authorize lawyers to inject unsworn, untestable factual assertions into judicial decision-making.
In no other context do we tolerate this maneuver. A lawyer may not summarize what an absent witness “felt” or “believed” and ask the court to rely on it. A lawyer may not act as both advocate for the child and conduit for unrecorded hearsay. Yet PGALs are routinely permitted to do exactly that, under the banner of child advocacy.
Calling this “representation” does not make it so. Representation does not mean substituting a lawyer’s impressions for evidence. It means protecting a client’s interests within the rules of proof and procedure.
The Closed Loop Problem
The result of this structure is a closed loop:
- The child cannot be interviewed by the court because a PGAL exists.
- The child cannot testify because that would be “harmful” or “unnecessary.”
- The PGAL cannot disclose what the child said because of confidentiality.
- The PGAL can still recommend outcomes based on undisclosed information.
Every safeguard points inward. None point toward reliability.
This is not factfinding. It is the insulation of findings and conclusions from verification.
An Ethical Problem, Not a Personal One
This critique is not an accusation of bad faith. But good intentions do not cure structural defects. A system that routinely substitutes untestable opinion for evidence is not merely inefficient; it is unjust.
Courts already possess tools to protect children while preserving due process: control over the mode and manner of testimony, relevance and prejudice balancing, recorded interviews conducted in camera, and tailored evidentiary safeguards. Choosing instead to rely on a lawyer’s untestable impressions does the child no favors; it substitutes faith (in an advocate) over fact (evidence in the record).
If We Mean to Hear Children, We Must Actually Hear Them
The uncomfortable truth is this: appointing a PGAL often functions less as a means of amplifying a child’s voice than as a way of silencing it—”professionally,” and with just enough legal jargon to make the problem disappear.
The child’s actual testimony is the best evidence of the child’s statements. A PGAL’s recounting is necessarily secondary, selective, and mediated. Treating the latter as a substitute for the former inverts the evidentiary hierarchy the rules are designed to preserve.
The only way for a court to hear from children involved in child custody and parent-time disputes is through their direct testimony[6]; any other form of communication—whether via reports, recommendations, or proxy—is not admissible as evidence of the child’s words or intentions.
Courts do not hear children through PGAL disclosures or recommendations, because neither is evidence. Courts must employ methods that produce evidence, not proxies for it. Anything else is theater. And children deserve better than a role in someone else’s performance.
If We Mean to Hear Children, We Must Actually Hear Them
Courts do not “hear” children through PGAL disclosures or recommendations. Neither constitutes evidence of the child’s words or intent. If a court wishes to consider what a child has to say, it must employ procedures that actually produce admissible evidence—whether through direct testimony or other evidence-gathering methods that preserve reliability and adversarial testing. Second-hand reports, summaries, and recommendations are not substitutes for proof.
A child’s own testimony is the best evidence of the child’s statements, perceptions, and preferences. A PGAL’s recounting, by contrast, is necessarily secondary, selective, and mediated. Treating that mediated account as a substitute for firsthand evidence inverts the evidentiary hierarchy the Rules of Evidence are designed to preserve.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] The problem is not that confidentiality exists; it is that confidentiality is used to justify judicial reliance on assertions that cannot be examined, verified, or challenged.
[2] § 78A-2-705(14) imposes a transparency requirement, not an evidentiary shortcut. When a private attorney guardian ad litem offers a best-interest recommendation in a court hearing, the statute requires disclosure of the factors that form the basis of the recommendation. Properly understood, that requirement presupposes that the identified “factors” are legally cognizable inputs to a judicial decision—i.e., matters supported by evidence already in the record or capable of being presented in admissible form under the Utah Rules of Evidence. The statute does not authorize reliance on unsworn impressions, hearsay summaries, or off-the-record communications, nor does it convert a recommendation into proof. Disclosure serves to expose the evidentiary foundation of the recommendation—or the lack of one—not to substitute argument for admissible evidence or to displace ordinary due-process and evidentiary safeguards.
[3] Nothing in § 78A-2-705 transforms those disclosures or recommendations into evidence, creates a hearsay exception, or dispenses with the Utah Rules of Evidence. A recommendation is advocacy, not proof. A disclosure is not testimony. The statute authorizes a role in the process; it does not authorize the substitution of unrecorded, untestable assertions for admissible evidence or excuse the absence of a reviewable record.
[4] Even if a PGAL were analogized to an expert—which the statute does not do—expert opinion must still rest on disclosed facts or data subject to scrutiny. An opinion insulated from its factual basis would be inadmissible in any other context.
[5] Nothing in Utah Code § 78A-2-705 overrides the Utah Rules of Evidence or basic due‑process requirements. Rules governing relevance and prejudice (URE 403), control over the mode and manner of testimony (URE 611), the right to challenge adverse factual assertions, and the need for a reviewable record all remain fully applicable. Statutory permission to participate does not confer immunity from evidentiary scrutiny.
[6] For purposes of this discussion, “testimony” refers to any method by which a child’s own statements are introduced into the evidentiary record as evidence and attributed to the child—whether through in camera examination, recorded interviews admitted under the rules of evidence, sworn statements, or live testimony.