In the practice of family law, we often hear a sentiment that is as ubiquitous as it is hollow: “We must protect the children from the litigation.” On its face, this sounds like the pinnacle of empathy. Judges, lawyers, and even parents often rally behind the idea that involving a child in a custody or parent-time dispute is a form of secondary trauma. They argue that children are too fragile to tell the truth, too easily manipulated by their parents, and too vulnerable to the “loyalty binds” that testimony creates.
But look past the high-minded rhetoric and too often, this “compassion” is a mask for a more uncomfortable reality: systemic cowardice. It is far easier to exclude a child’s voice than it is to develop the forensic tools necessary to hear it safely and accurately. By silencing children, we aren’t shielding them from distress; we are abandoning them to the consequences of a decision made in the dark.
The Fallacy of the Risk-Free Choice
The question is not whether involving a child is risky. The question is which risk the court is willing to accept—and on whose behalf.
The core of the “protectionist” argument is not that child testimony carries risk—but that it carries more risk than silencing the child. That comparative claim is almost never examined. A child might feel pressured; a parent might attempt to retaliate; the child may feel the weight of a monumental choice. However, the critics of child testimony act as if not eliciting the child’s input is risk-free.
What is avoided is not concern for the child—it is responsibility. Responsibility to design careful procedures. Responsibility to make credibility determinations. Responsibility to confront manipulation. Silence is chosen not because it is safer for children, but because it is administratively easier and emotionally cleaner for courts.
This is a dangerous dereliction of duty.
In many cases, the child is the only witness to the daily reality of the home. They are the only ones who know what happens when the “courtroom persona” of a parent falls away. When we refuse to inquire deeply with the child, we don’t eliminate risk—we simply shift it. We trade the acute, manageable potential distress of a recorded interview for the chronic, potentially catastrophic risk of a life-shaping custody award based on incomplete or fraudulent evidence. To claim we are “protecting” a child by keeping the court ignorant of his/her reality is not an act of mercy; it is an act of institutional negligence.
Silence Transfers Risk from the Court to the Child
A code of silence is not a code of neutrality. By declining to hear directly from children, courts transfer the risk of error away from adjudication and onto the child who must bear its consequences. That transfer predictably advantages the parent best able to shape the narrative or evade scrutiny. Rather than mitigating prejudice, silencing the child witness generates it.
In any other legal context involving a person’s fundamental safety and liberty, the victim or the stakeholder is given a voice. Yet, in family law, we treat the primary stakeholder—the person who will actually live the outcome—as a passive object to be moved across a chessboard.[1]
When a court presumes a child’s perspective is “unreliable” because he might be coached, we are essentially saying that the parent’s ability to manipulate is more powerful than the court’s ability to discern the truth. This is a defeatist attitude. If a child is being coached or abused, that is precisely the evidence the court needs to see and consider. Silence doesn’t stop the manipulation; it merely ensures the manipulator is never exposed.
True determinations of a child’s best interests cannot rest on filtered, second-hand accounts of the child’s experience. Guardians ad litem and custody evaluator commentary are necessarily interpretive: they summarize, select, and reframe what a child says through professional judgment, therapeutic framing, or advocacy constraints. In doing so, they inevitably compress and degrade nuance, tone, and context—the very features that often matter most. A court charged with deciding a child’s future must evaluate evidence, not abstractions of it. Acting in a child’s best interest therefore requires direct, verifiable firsthand witness of the child’s experiences and perspectives, preserved in a form that permits scrutiny, reliability assessment, and meaningful judicial judgment.
Reliance on intermediaries is often justified by their training. But training does not transform advocacy into evidence, nor interpretation into a substitute for testimony. A guardians ad litem does not preserve a child’s words; they replace them. Custody evaluators do not transmit a child’s lived experience; they abstract it. The issue is not competence (though that is a real concern in its own right)—it is substitution.
The Requirement of Verifiable Evidence
Any system that decides a child’s future without preserving the primary source evidence of that child’s lived experience is not merely incomplete, it is epistemically unsound.
If the system is to move past this short-sighted cowardice disguised as compassion, it must hold itself to a higher standard of evidence—for the sake of the child. We must stop settling for substitutes and start requiring:
- Audio-visual recordings: Judges must not rely on a third party’s notes and summaries. They need to see the child’s eyes, hear the tremor in their voice, and observe the body language that tells the story words cannot.
- Objective records: We need a verifiable record of the inquiry and the response. This allows for forensic (and appellate) review. If a child is being coached, a recorded interview is crucial to identifying that coaching.
- Direct accountability: A preserved record permits the court to evaluate the parents’ competing claims in light of the child’s own account.
Conclusion: Sound Adjudication Requires Evidence, Not Avoidance
A court’s reluctance to hear directly from children is often less about protecting children than about giving that court cover for choosing the easier wrong over the harder right.
To the judges and lawyers who cling to the idea that silence equals safety: recognize that your reluctance to involve the child is often a desire to avoid the “messiness” of the truth. It is “cowardly” to decide a child’s fate while refusing to look that child in the eye.
To the parents: understand that your child is not a trophy to be won, but a human being whose perspective is the most relevant evidence in the room.
The risk of an uncomfortable conversation is a small price to pay to avoid the lifelong tragedy of an uninformed judgment. Child protection does not require the exclusion of child testimony. It requires procedures that permit children to testify safely, preserve their testimony, and adjudicate custody on a complete factual record.
An understandable worry about the distress litigation can cause should not eclipse concern for the far more enduring distress of a childhood shaped by an uninformed custody decision.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] This argument is not about asking children to choose between parents. Courts decide custody; children supply evidence. Those are not the same thing, and treating them as interchangeable is a category error that excuses silence under the guise of protection.