A constitutional critique of Utah Code § 81-9-204(5)(a)
Utah, like every state, bears a solemn and compelling responsibility to protect children involved in custody and parent-time disputes. That responsibility is real, weighty, and often decisive. Courts are tasked with determining a child’s “best interests” in proceedings that may involve allegations of abuse, neglect, alienation, or profound relational harm.
Even the most laudable governmental objectives must be pursued within constitutional limits—not in spite of them. Those limits exist precisely to ensure that worthy aims are achieved through fair and reliable means.
Utah Code § 81-9-204(5)(a), which sharply restricts when a minor child may testify in custody proceedings, crosses those limits when it is construed or enforced in a manner that prevents the child’s testimony from being heard at all. As applied in many Utah courts, the statute threatens fundamental rights protected by the Due Process Clause of the Fourteenth Amendment and by the Due Process and Open Courts Clauses of the Utah Constitution.
This is not an argument against protecting children. It is an argument against replacing evidence with professional substitution—and calling that protection.
The Problematic Text of the Statute
Utah Code § 81-9-204(5)(a) provides:
“A minor child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the minor child be heard and there is no other reasonable method to present the minor child’s testimony.”
On its face, the statute imposes a conjunctive, two-part gatekeeping requirement. Testimony may be compelled only if (1) extenuating circumstances necessitate it and (2) there is no other reasonable method to present the child’s testimony.
That structure matters. This is not a mere presumption against testimony. It is an aggressively exclusionary framework that must be satisfied before testimony is permitted at all.
In practice, this framework has proven far more restrictive than its stated purpose suggests.
From Limiting Compulsion to Silencing Children
Many Utah courts have construed the statute’s opening clause—“A minor child may not be required by either party to testify”—to mean that even a willing minor child may not testify unless the statute’s heightened conditions are satisfied.
Under this construction, a child who affirmatively wishes to speak, who understands the process, and who possesses relevant, non-cumulative knowledge is nevertheless barred from testifying unless the court finds both “extenuating circumstances” and “no other reasonable method” of presenting the child’s testimony.
That interpretation is deeply flawed.
A. The Statute Regulates Compulsion, Not Voluntary Testimony
The statute does not provide that a child may not testify. It states that a child may not be required to testify. The ordinary meaning of “required” is compelled—forced to appear or speak against one’s will.
That distinction is not semantic. It is constitutional.
Had the legislature intended to prohibit all child testimony absent narrow findings, it could have said so explicitly. It did not. Reading the statute to bar voluntary testimony rewrites the law to say something it does not say, expanding its reach beyond its text.
Courts should be especially cautious about such expansions when fundamental rights are implicated.
B. Prohibiting Willing Testimony Magnifies the Constitutional Harm
Even if one accepted the statute’s restrictions on compelled testimony, extending those restrictions to willing child witnesses dramatically intensifies the constitutional problem.
A child who affirmatively seeks to be heard—or who is simply willing to testify when asked—particularly an older or mature child, is not being protected by categorical exclusion. The exclusion deprives the court of probative evidence, the parties of a fair hearing, and the child of a process aligned with the child’s best interest.
From a due process standpoint, a rule that treats a willing witness as though he/she were being coerced collapses any meaningful tailoring. It strips courts of the ability to distinguish between:
- coercive compulsion, which may justify heightened safeguards, and
- voluntary participation, which raises fundamentally different concerns.
Neither the United States Constitution nor the Utah Constitution tolerates such blunt instruments.
Federal Due Process and the Right to Present Evidence
A. Custody Proceedings Implicate Fundamental Liberty Interests
A parent’s interest in the care, custody, and companionship of a child is a fundamental liberty interest protected by both the U.S. Constitution and Utah Constitution (collectively, “the Constitutions”). Utah courts have long recognized that custody and parent-time determinations profoundly affect familial relationships and therefore require heightened procedural fairness.
When the State adjudicates such rights, it must provide a fair hearing—one in which all relevant evidence is given a fair and meaningful opportunity to be presented, tested, and weighed by the trier of fact.
B. Due Process Requires a Meaningful Opportunity to Be Heard
At its core, due process requires notice and a meaningful opportunity to be heard at a meaningful time and in a meaningful manner. That guarantee is hollow if the most probative evidence is categorically excluded.
In many custody disputes—particularly those involving abuse allegations, parent-time resistance, or disputes about a child’s lived experience—the child is the primary percipient witness. The child’s testimony is not cumulative. It is central.
Utah Code § 81-9-204(5)(a), as applied, permits courts to exclude that testimony even when it is necessary to resolve disputed facts, based on the availability of professional intermediaries. That substitution violates procedural due process.
There Is No Constitutionally Adequate Substitute for Testimony
Testimony is evidence. It is sworn, contextualized, and subject—at least in principle—to judicial scrutiny.
Guardians ad litem and private guardians ad litem do not present testimony, and custody evaluators—though they may testify as experts and recount statements made to them—do not present the child’s sworn, firsthand testimony. Instead, GALs and PGALs offer opinions, recommendations, or syntheses derived from information that is unsworn, unrecorded, and insulated from adversarial testing. Although custody evaluators may recount what a child and collateral sources allegedly said, those statements are typically unrecorded and filtered through the evaluator’s judgment, rendering them likewise insulated from meaningful adversarial scrutiny.
When courts allow such intermediaries to replace testimony—especially the testimony of a willing child witness—they deprive parents of the ability to present and challenge critical evidence and deprive courts of the ability to assess credibility firsthand.
Due process permits regulation of how testimony is taken. It does not permit elimination of testimony altogether when it is necessary to a fair adjudication.
The “No Other Reasonable Method” Requirement Is Illusory
The statute’s second condition—that there be “no other reasonable method” of presenting the child’s testimony—purports to protect children while preserving adjudicative integrity. In practice, it accomplishes neither.
If professional intermediaries are deemed reasonable “substitutes” for the child’s own testimony, then there will always be another method. The statutory threshold will never be met. The exception will swallow the rule.
This is especially untenable when applied to willing child witnesses. Under that logic, a child’s own testimony is never the most reasonable method of presenting his/her experience—even when the child wants to speak or is willing to speak.
That outcome is constitutionally impermissible. As a constitutional baseline, the reasonable method of presenting a child’s testimony is the child’s testimony itself—particularly where the child is willing to testify. Courts should not treat inferior substitutes as reasons to exclude primary evidence; they are reasons to hear it.
Utah’s Open Courts Clause and the Right to a Remedy
Article I, Section 11 of the Utah Constitution guarantees that courts shall be open and that no person shall be barred from prosecuting or defending before any tribunal in this State.
This provision protects more than physical access to a courthouse. It protects meaningful access to adjudication.
When a court bars a willing, material witness—especially the person most affected by the outcome—it erects a legislative barrier to prosecution or defense. The parent is prevented from presenting evidence. The child is prevented from being heard. The court is prevented from fully adjudicating disputed facts.
That is not an open court. It is an opaque decision-making process insulated from verification and review.
“Best Interests” Do Not Override Due Process
The assertion that the best interests of the child override due process misunderstands both doctrines.
The best-interests standard is a substantive decision-making principle. Due process governs the integrity of the fact-finding process itself. Sacrificing one to serve the other deprives the court of any reliable basis for decision at all.
In particular circumstances, protective interests may justify safeguards—in camera testimony, limited scope, structured questioning. They do not justify categorical exclusion, particularly where the child is at least willing to be heard.
A system that excludes children’s testimony in the name of protection invites error and injustice—the very outcomes the best-interests standard exists to avert.
Prohibition of Due Process Is Not Protection
Utah Code § 81-9-204(5)(a), as written and as applied, unconstitutionally restricts the right to a fair hearing. When construed to bar even willing child witnesses, the statute moves from limiting compulsion to foreclosing the presentation of material evidence.
By allowing testimony to be replaced with professional interpretation, it violates the Due Process Clause of the U.S. Constitution and the Due Process and Open Courts Clauses of the Utah Constitution.
Protecting children does not require deciding their futures without them. When the Constitution demands a fair hearing, the courtroom must remain open—to evidence, to truth, and, when necessary, to the child.
Protecting children does not require deciding their futures without their contribution to the process. The Constitutions demand a fair hearing; accordingly, the courtroom must remain open to evidence, to truth, and—consistent with due process and the child’s willingness—to the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277