When Courts Hear About Children Instead of Hearing From Them
In Utah child-custody and parent-time disputes, motions to appoint a Private Guardian ad Litem (PGAL) and/or a custody evaluator have become almost reflexive. The structure of these motions is usually familiar:
- Cite the PGAL statute.
- Cite UCJA Rule 4-903.
- Note that custody and parent-time are disputed.
- Declare—often in a single sentence—that appointment is “in the children’s best interests.”
What is usually missing is analysis. Not just thin analysis—but any explanation of what evidentiary problem the appointment is supposed to solve.
That omission matters. A lot.
The First Gap: No Showing That Child Testimony Is Unavailable
The most striking feature of these motions is what they do not say about the children themselves.
Typically, there is:
- no claim that the children are incompetent to testify.
- no claim that they are unwilling to speak.
- no claim that they are unable to communicate.
- no claim that their testimony would be cumulative, marginal, or irrelevant.
And even when such claims are made, they are almost always conclusory—asserted without supporting, objectively verifiable evidence.
Most importantly, these motions rarely argue—let alone prove—that admissible child testimony is unavailable.
Without that showing, appointing a PGAL or custody evaluator does not fill an evidentiary gap. It replaces evidence with assertion. That is not supplementation; it is substitution.
The Second Gap: Treating Advocacy as Evidence
Proponents of PGAL appointment often treat a PGAL’s “disclosures” and “recommendations” as if they were evidence.
They are not.
Under Utah law, a PGAL is authorized to advocate, not to testify. A PGAL is not a witness—expert or otherwise. A PGAL:
- is not sworn,
- cannot be cross-examined, and
- cannot place a child’s words into the evidentiary record.
A PGAL’s “disclosures” (Utah Code § 78A-2-705(13) and (14)) are not testimony, neither is it some form of “alternative evidence”. A “recommendation” is not evidence without the underlying proof in the record.
Yet motions for PGAL appointment rarely explain how the court is supposed to test the reliability, credibility, or accuracy of what the PGAL reports—especially when that reporting substitutes for hearing directly from the child.
Custody evaluators are often treated differently in name but not in substance. Although labeled “experts,” their conclusions frequently rest on little more than the assertion/assurance that the evaluator complied with Rule 702.
Custody evaluators hate having their files subpoenaed, and courts are usually more than happy to support their objections when attempts to subpoena the files are made. Rarely is there a clear showing of how custody evaluators outperform—or are even comparable to—direct, properly managed child testimony.
The Third Gap: “Best Interests” Is Not an Evidentiary Shortcut
Invoking “best interests of the child” does not excuse bypassing the rules and fundamental principles that govern how facts are found.
Best-interest determinations are only as sound as the evidence supporting them.
Utah’s evidentiary framework already gives courts powerful tools to hear from children safely and humanely:
- Rule 403 allows exclusion of testimony where probative value is substantially outweighed by harm.
- Rule 611 gives courts control over the manner, scope, and tone of examination.
- Courts may conduct in camera interviews, limit questioning, or structure testimony to provide any needed protection.
Proponents of PGALs and custody evaluators almost never argue that these tools are inadequate. Instead, they ask the court to bypass them altogether.
What Motions for PGAL and/or Custody Evaluator Appointment Are Really Seeking: Insulation
When you strip away the rhetoric, what many of these motions seek is not protection—but insulation:
- insulation from sworn testimony.
- insulation from cross-examination.
- insulation from a reviewable record.
- insulation from criticism that children were allowed to speak for themselves.
That may be more convenient. It may feel safer. It may shield a court from criticism. But it is not more accurate—and it is not required by law.
The Cost and Proportionality Problem
PGALs and custody evaluators:
- are expensive.
- cause delay
- introduce opacity, and additional layers of interpretation—often without a clear showing of
- necessity; or
- evidentiary weight
By contrast, child testimony taken with appropriate safeguards (if and when, and only if and when safeguards are shown to be necessary in the first place):
- costs far less (or nothing at all if conducted by the judge or commissioner) than a PGAL and/or custody evaluator,
- produces a clearer record (heck, it produces a record—PGALs and custody evaluators don’t), and
- is frequently the most probative evidence available about the child’s actual lived experiences and the child’s desires.
Proportionality matters. Appointments should be justified by need, not habit or conventional wisdom.
What This Argument Is—and Is Not—Asserting
This is not a call to force children to testify.
It is a call to stop silencing children who are willingto speak, when the law already provides humane, controlled, and lawful ways to hear them (as it does—and always has—for a witness of any age or circumstance).
Children are often treated as perceptive enough to be deeply affected by custody outcomes—but not competent enough to describe their own lives. That contradiction deserves scrutiny.
If a court is going to replace a child’s voice with an intermediary, it should be required to explain why. Assertions are not enough. “Best interests” is not a magic phrase. Evidence still matters.
And children’s own testimony is some of the best evidence far more often than the legal profession and judiciary give it credit for.
Utah Family Law, LC | divorceutah.com | 801-466-9277