Evidence, Record-Making, and the Limits of Testimonial Substitution
Courts, lawyers, and commissioners in child custody and parent-time disputes often operate on an unspoken assumption: that the only acceptable way to learn what children know, experience, and want is through a guardian ad litem or custody evaluator. That assumption is rarely examined and seldom defended with evidence. Over time, it has hardened into orthodoxy, grounded less in demonstrated evidentiary superiority than in process convenience and an understandable reluctance to “do the difficult right”.
This is not an attack on the concepts of guardians ad litem or custody evaluators (though current Utah P/GAL and custody evaluator practices patently leave much to be desired, but that is a separate subject). Nor is it an assertion that children should routinely be subjected to adversarial examination. The question here is narrower and more fundamental: why courts in child custody and parent-time dispute cases categorically reject limited, on-the-record, judicially supervised inquiry—designed to be developmentally appropriate and reviewable—while simultaneously accepting unsworn, unrecorded, second-hand summaries as a substitute for evidence.
When statutes require courts to assess what children know, understand, and desire (as does Utah Code §§ 81-9-204 and 81-9-305 do), the way that information is gathered matters. But the obligation does not arise from statute alone or even primarily. Civil litigation’s fundamental purpose is resolving disputed facts through evidence drawn from the best available sources, subject to procedures that allow courts to assess reliability, context, and weight. As a general rule, the closer a witness is to the facts in dispute, the more probative—and the more necessary—that witness’s evidence becomes.
Children are not peripheral observers in custody and parent-time disputes; they are often central sources of information about their own experiences, understanding, and circumstances. They also bear the most direct and enduring consequences of custody determinations. These realities do not elevate children to decision-makers, but they plainly establish the mandate of grounding judicial findings in the most reliable evidence available from the sources closest to the facts at issue.
A system that systematically substitutes witness proxies and second-hand summaries for record-creating inquiry does more than rely on custom, it departs from the core evidentiary premise that courts should hear from the best witnesses available, in a manner that permits meaningful evaluation and review. If courts claim the privilege of departing from that premise in child custody and parent-time cases, that claim must be justified on evidentiary grounds, not assumed as a matter of habit or convenience.
The Assumption No One Examines
In modern Utah custody litigation, reliance on P/GALs and custody evaluators feels natural and responsible. It promises to protect children from the perceived trauma of court involvement, to insulate them from parental conflict, and to delegate sensitive interactions to professionals trained in child development. It also offers practical benefits: efficiency, docket control, and emotional distance for courts asked to resolve deeply personal disputes.
But the central claim that indirect, unrecorded professional summaries are inherently more reliable or less harmful than limited judicial inquiry rests largely on intuition and repetition rather than verifiable evidence. It is rarely tested, rarely compared against alternatives, and almost never substantively justified on the record.
Measured by meaningful standards, the assumption fares poorly. It does not reliably produce a record capable of supporting factual findings. It does not allow courts to evaluate the quality or limits of the information being relied upon. It does not permit meaningful review of how a child’s statements were elicited, contextualized, or interpreted. And it substitutes a summarized conclusion/recommendation for the underlying evidence of what the child actually said as to his/her experiences, observations, feelings, understandings, and desires—and their bases for them.
The persistence of this assumption is better explained by institutional dynamics than by evidentiary merit. Reliance on intermediaries manages risk, delegates workload, diffuses responsibility, and signals concern for children, all while sparing courts the burden of direct engagement. Over time, what is convenient becomes conventional—and what is conventional becomes unquestioned.
Process Is Not Evidence
In virtually every other context, courts insist on basic evidentiary discipline before making factual findings. Witnesses must have personal knowledge. Opinions must be constrained. Assertions must be capable of being tested and reviewed. Findings must rest on a record. These are not technical niceties; they are how courts distinguish fact from narrative and judgment from intuition.
Yet in custody and parent-time disputes, courts dispense with these expectations when the subject turns to children. Instead of admissible evidence, courts rely on unsworn, unrecorded summaries not only of what a child allegedly “wants,” “feels,” or “believes,” but also of what the child is said to have observed, experienced, or witnessed in the household. Rarely, if ever, is the child treated—by the court or by counsel—as a percipient witness to historical fact, capable of providing direct evidence about parental behavior, judgment, and events bearing on the statutory factors the court is required to assess. As a result, there is seldom an objectively verifiable record of the questions asked, the context in which they were asked, or the child’s actual words.
Consider a common scenario. A child is—allegedly—interviewed privately by a GAL[1], who later reports that “the child wants to live with Parent A.” The court accepts that representation. Missing from the record is everything that would ordinarily matter: whether the interview followed a conflict with the other parent; whether the child’s “cognitive ability and emotional maturity” show the child understood and appreciates the consequences of his/her preference; whether the preference was conditional or situational; or whether it was shaped by recent events or leading/intimidating questions. None of that information is preserved. None of it is reviewable.
Moreover, Utah law requires courts to do far more than identify a child’s stated preference. Courts must assess what children know, understand, and desire as part of a broader statutory analysis that turns on concrete facts: parental behavior, judgment, household dynamics, and events bearing directly on a child’s welfare. Children are often percipient witnesses to those facts. Learning only that a child allegedly “wants” a particular outcome without examining what the child has observed, experienced, or understands, leaves substantial, legally relevant ground unexplored. Narrative substitution may streamline the process, but it also forecloses meaningful analysis of the very factors the law requires courts to evaluate.
The consequences are predictable. Reliability suffers. Nuance is lost. Valuable factual evidence from the child goes unsought. Appellate review becomes largely illusory. And the risk of bias—intentional or unintentional—increases when fact-finding operates outside the safeguards that normally constrain it.
What This Is and Is Not About
This is not an argument that children should routinely testify, nor a denial that poorly conducted inquiry can be harmful. It is an argument against categorical avoidance of child testimony on and for the record. A sincere desire to spare a child emotional pain does not resolve—and cannot replace—the question of whether on-the-record child testimony is appropriate. It cannot substitute for evidentiary rigor in an adjudicative process. A system that relies on unrecorded, untestable professional conclusions—however conscientiously formed—invites error and distortion by depriving courts of the ability to assess reliability, context, and weight. Good intentions do not substitute for evidentiary rigor. Systems built on lax standards inevitably invite error and distortion.
Nor is this a rejection of mental-health professionals. It is, however, a critique of systemic overconfidence, overreliance, and role expansion. Courts increasingly delegate core fact-finding functions to mental-health professionals whose input—however valuable in other contexts—cannot replace evidentiary process in an adjudicative system. When professionals operate outside the ordinary constraints of testimony, record-making, and review, that delegation weakens evidentiary foundations, adds cost and complexity, and erodes public confidence in the fairness and transparency of custody determinations.
Nor is this a claim that deposition or in-court testimony by children is always appropriate. It is a direct challenge to the entrenched presumption that children are inherently harmed by the act of testifying itself. That presumption is often asserted, rarely examined, and seldom grounded in evidence. Children are not categorically incapable of providing reliable testimony, nor is participation in ordinary evidentiary process inherently more damaging than other court-sanctioned methods of inquiry. Where concerns exist about the manner of eliciting testimony, the rules of evidence contemplate regulation of the mode and scope of examination—not categorical exclusion—in order to protect witnesses while preserving record-based fact-finding (see Utah R. Evid. 611(a)). When conducted under ordinary, sensible evidentiary constraints and preserved on the record, structured questioning—whether by counsel or the court—may be no more intimidating, and sometimes less so, than private interviews with unfamiliar professionals conducted off the record. The relevant question is whether the method employed best serves the court’s obligation to ground its decisions in admissible, reviewable evidence while protecting the witness from undue harassment or embarrassment.[2]
A Modest, Reviewable Alternative
The alternative is neither radical nor new. It asks only that courts apply ordinary evidentiary principles to children as they do to other witnesses, remaining open—when appropriate—to record-creating methods of inquiry rather than categorically excluding them. Judicial interviews, depositions, or brief courtroom testimony are familiar tools of civil litigation, not extraordinary or presumptively problematic measures. They can be conducted under the same rule-governed constraints that apply elsewhere: defined scope, reasonable limits on duration and questioning, preservation on the record, and active management of examination where necessary. Nothing about a witness’s age renders these mechanisms presumptively improper. What matters is not whether the witness is a child, but whether the method employed produces admissible, reviewable evidence capable of supporting the court’s findings. What distinguishes these methods from prevailing practice with child witnesses is transparency and record creation. Instead of relying on unverified, filtered summaries, courts gain access to the source material they are asked to weigh. Instead of inferring reliability in the absence of a record, courts can evaluate it by examining the questions asked, the answers given, and the context in which they were provided. Instead of insulating findings from review, they preserve a record capable of supporting them.
This is not an argument for using any single method in every case, nor a denial that no method of obtaining testimony is perfect. It is an argument about evidentiary sufficiency. Sworn, on-the-record testimony—whether from a child or an adult—is imperfect, but it is examinable, contextualized, and reviewable. Narrative recommendations from guardians ad litem or custody evaluators –that lack any reviewable record basis—are clearly not.
Verification is not optional, and trust is not a substitution for evidence. That distinction is dispositive here.
However well intentioned, summary reports and recommendations untethered from an underlying record cannot substitute for admissible evidence, because they rely on trust where the adjudicative process requires verification. When courts must make findings about what children know, understand, and desire—and when those findings materially affect outcomes—the choice is not between perfect and imperfect methods, but between evidence that verifiably exists and narratives that are not evidence at all.
The Obligation to Explain
Courts have discretion to manage procedure and to regulate the manner of eliciting testimony in a given case, but that discretion does not extend to categorical exclusion of record-creating methods without a reasoned, reviewable justification. When courts rely on unsworn, unrecorded summaries as a substitute for evidence, that choice warrants explanation.
Inviting that explanation is not an act of criticism, but of institutional respect. Courts routinely demand justification from litigants who ask them to depart from ordinary evidentiary practice. It is neither radical nor unfair to ask the same of the system itself.
Until that explanation is offered, the question remains open—not whether current practices are familiar or well intentioned, but whether they are justified on evidentiary grounds.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] The only evidence that the interview ever actually took place is the word of the purported interviewer; there is no record of an interview itself, no objective, independently verifiable record beyond the interviewer’s own account that it occurred.
[2] Courts sometimes respond to requests for record-creating child testimony with a conclusory assertion that “having the child testify would be contrary to the child’s best interest” or “deleterious to the child’s welfare.” Framed this way, the statement functions less as an evidentiary analysis than as a rhetorical shortcut. “Best interest” is the ultimate question the court is tasked with answering on the merits; it is not an evidentiary rule and does not, by itself, justify exclusion of otherwise probative testimony. Invoking it at the threshold assumes—rather than demonstrates—that the manner of testimony would be harmful, without findings, record, or balancing. When courts rely on such conclusory formulations, they substitute outcome-based intuition for the evidentiary analysis the rules contemplate, and effectively insulate that choice from review.