This post is the second in a four-part series examining Utah courts’ reliance on guardians ad litem (GALs), private guardians ad litem (PGALs), and custody evaluators, and the legal, procedural, and institutional implications of that reliance.
______________
Blog 1 explained why Utah courts rely on guardians ad litem (GALs), private guardians ad litem (PGALs), and custody evaluators—collectively referred to here as best-interest professionals. That reliance was framed as pragmatic rather than ideological: an effort to manage complexity, protect children, and reach decisions that feel informed rather than improvised. Those justifications are understandable.
Understanding them, however, does not resolve the legal question. The issue is not why courts seek help, but how that help is received and used. When examined through the lens of evidence law, judicial fact-finding, and procedural safeguards, the prevailing mode of reliance reveals a structural problem: courts often accept material that would not withstand scrutiny if formally challenged, and then rely on it as though it had.
This is not a story about bad actors. It is a story about structural reliance on inputs that operate outside the rules that ordinarily govern adjudication.
Assistance versus substitution
Courts are permitted—indeed expected—to receive assistance. Judges rely on expert testimony, party stipulations, advisory input, and briefing in many contexts. But there is a doctrinal line between assistance and substitution.
Assistance supplements judicial decision-making by providing admissible evidence or properly constrained expert opinion. Substitution occurs when the court’s fact-finding function is functionally displaced by a third party’s synthesis—particularly where that synthesis is not itself evidence, is not transparently derived, does not appear on the record, and is not meaningfully tested.[1]
In child custody cases, best-interest professionals are often relied upon not merely to assist, but to pre-sort facts, resolve conflicts, and frame outcomes before the court independently engages in formal fact-finding. When that synthesis becomes the functional basis for the court’s decision, the line between assistance and substitution is crossed.
The problem of unsworn synthesis
A central feature of the problem is the way information reaches the court. Much of the work performed by best-interest professionals occurs off the record: interviews are unrecorded, collateral contacts are summarized rather than documented, and credibility assessments are conveyed without exposing the underlying data. By way of just two common examples:
Upstream credibility resolution
In a typical contested child custody case, each parent presents sharply conflicting accounts of the same events. Rather than those conflicts being resolved through sworn testimony and judicial credibility determinations, a best-interest professional may summarize one account as reliable and the other as inconsistent or less credible, delivering a resolved narrative to the court. When the court relies on that resolution rather than independently weighing the conflicting evidence itself, assistance has quietly become substitution.
Child statements converted into conclusions
A similar dynamic arises when a child’s mixed or ambivalent statements about parent-time are paraphrased into conclusions such as “the child prefers Parent A” or “the child feels unsafe with Parent B,” without the court hearing the underlying statements or their context. The court is then asked to rely on an interpretive conclusion rather than assess admissible evidence about what the child actually said or experienced.
The resulting product—a recommendation, report, or oral summary—is not sworn testimony, is not subject to contemporaneous objection, and is often not accompanied by a complete record showing how and on what factual bases conclusions were reached.
In other areas of law, such material would be recognized for what it is: advocacy or opinion unsupported by admissible evidence. In child custody cases, it is often treated differently—not because the rules have changed, but because they are quietly relaxed.
Rule 702 and the unexamined appearance of expertise
Custody evaluators are often described as experts, and courts understandably value specialized knowledge about child development, family systems, and psychological dynamics. But under Utah Rule of Evidence 702, expertise is not established by title or experience alone. It requires a showing that opinions are based on sufficient facts or data, that reliable principles and methods were used, and that those methods were reliably applied.
In practice, custody evaluations often fall short of that standard in familiar ways. Methodologies are described at the level of labels—“clinical interviews,” “observations,” or “professional judgment”—without explaining how information was gathered, evaluated, or reconciled. Conclusions about parental capacity or a child’s needs are offered without a clear evidentiary bridge linking stated facts to ultimate opinions. And alternative explanations for a child’s behavior or expressed preferences are often unaddressed, leaving the court with an opinion that appears complete but cannot be meaningfully tested.
The issue is not whether courts may consider expert opinion in child custody cases—they may—but whether those opinions are subjected to the evidentiary validation Rule 702 requires before they are relied upon in judicial fact-finding.
The presumption of neutrality and specialized insight
A related justification for reliance on best-interest professionals is the belief that they are both neutral and specially equipped to assess family dynamics in ways the court cannot. GALs and PGALs are described as independent advocates for children’s best interests; custody evaluators are assumed to bring psychological insight beyond the court’s own training. These assumptions help explain why synthesized recommendations are treated as useful rather than suspect at the outset.
As a doctrinal matter, however, neither neutrality nor expertise is self-validating. Neutrality is not a credential; it is a condition demonstrated through process. Expertise is not conferred by role; it must be shown through methodology that satisfies Rule 702. In other areas of law, courts do not defer to professionals merely because they are described as neutral or expert. They require transparency, reliability, and testability.
Child custody cases are different not because the standards change, but because they are often assumed rather than actually applied. Claims of neutrality substitute for scrutiny of process, and assertions of specialized insight stand in for a disclosed, testable chain of reasoning. The result is institutional deference to conclusions that perform adjudicative work without the evidentiary validation the law requires.
That deference is often reinforced by institutional incentives. Courts are understandably reluctant to see custody evaluators or other best-interest professionals subjected to searching scrutiny, particularly when courts rely upon those professionals repeatedly. When an evaluator’s methodology is exposed as lacking scientific rigor—untethered from a defined method, unsupported by verifiable data, or incapable of replication or testing—the consequence is not merely professional embarrassment; it is the loss of a trusted intermediary. The court must then shoulder more of the adjudicatory burden itself—resolving factual disputes, weighing credibility, and engaging directly with evidence rather than through a synthesized proxy. Over time, this dynamic can produce an institutional inclination to shield evaluators from close scrutiny, not because such scrutiny is improper, but because it threatens to disrupt established mechanisms by which adjudicative responsibility is managed.
Role conflation and the erosion of procedural safeguards
The legal difficulty is compounded by the way roles are often blended. The same best-interest professional may investigate, interpret, and then advocate for or frame a preferred outcome. Information gathering, analysis, and recommendation occur within a single, largely unregulated, unverifiable workflow.
This role conflation would raise concerns in any other adjudicative context. Investigators are not ordinarily permitted to decide, or even opine on, credibility. Advocates are not ordinarily treated as neutral fact-finders. Adjudicators are not ordinarily insulated from evidentiary challenge.
When the functions of investigation, interpretation, and outcome-framing merge in a single, largely unregulated process, procedural safeguards erode—not because anyone intends them to, but because the structure permits it.
The displacement of sworn testimony
One consequence of this structure is the systematic displacement of sworn testimony. Rather than hearing directly from witnesses—including, where appropriate, the minor children themselves—courts rely on summaries and characterizations provided by best-interest professionals. Those summaries may be accurate or inaccurate; the point is that we do not know. We do not know because the summaries are not tested, and they are not tested because they are not reviewable, and they are not reviewable because they are not recorded.
The significance of sworn testimony lies not in its performative aspects, but in the procedural disciplines it imposes—attribution, cross-examination, and the creation of a reviewable record. When testimony is displaced by synthesized accounts, those disciplines no longer constrain the fact-finding process.
This is not an argument that children should always testify, or that child custody cases should be litigated like other civil disputes. It is an argument that when direct testimony—from parents, collateral witnesses, or children—is replaced by unrecorded summaries and characterizations, the court is no longer deciding the case on admissible, testable evidence. That displacement of testimony is legally significant.
A structural failure, not a personal one
It bears repeating: this critique is not about bad actors. Even if best-interest professionals act in good faith, and even if courts approach these cases conscientiously, the problem is structural. A system that relies on unsworn, unrecorded, and untested synthesis deprives the court of the ability to evaluate how conclusions were reached, to distinguish careful analysis from assumption, or to separate principled judgment from intuition or convention. When those distinctions cannot be made, reliability cannot be assessed—and adjudication proceeds without the evidentiary foundation that the law, and that a trustworthy ruling, requires.
When courts decide cases based on material that would not survive formal evidentiary scrutiny, the issue is not who failed. It is that the adjudicative process is operating on inputs that are unsworn, untested, and unverifiable—inputs that the law does not treat as a sufficient foundation for judicial fact-finding.
What this means going forward
If Blog 1 explained why Utah courts rely on best-interest professionals, this post explains why that reliance is legally precarious. The problem is not that courts seek help. It is that the help they receive is often not constrained by the rules that protect judicial decision-making.
The next question, then, is not whether this system should be abandoned, but what preserves child welfare while restoring evidentiary rigor, judicial accountability, and meaningful review. That is the subject of the next post.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Synthesis, as used in this series, refers to the organization, summarization, and framing of information for the purpose of assisting judicial decision-making. Synthesis is not inherently improper and is, in many contexts, essential to adjudication. Permissible synthesis includes advocacy-based synthesis—such as opening statements and closing arguments—which organize admitted or anticipated evidence, highlight themes, and propose inferences while remaining transparent about their argumentative nature and fully subject to objection, rebuttal, and judicial disregard. It also includes neutral organizational synthesis, such as summarizing sworn testimony already in the record, assembling timelines from admitted exhibits, or mapping disclosed facts to statutory child custody factors without resolving disputed issues. Impermissible synthesis arises when off-record information is selectively interpreted and presented as authoritative conclusions—resolving factual disputes, assessing credibility, or framing outcomes—without exposing the underlying data, methodology, or reasoning to adversarial testing. The concern addressed here is not the presence of synthesis, but its use as a substitute for sworn, recorded, and reviewable evidence, or as a functional stand-in for judicial fact-finding when ordinary evidentiary safeguards are absent.