Seth Godin observed that every important medical innovation of the last several centuries—handwashing, antibiotics, acknowledging the dangers of smoking—was initially resisted by the medical establishment. Not because the ideas were obviously bad, but because they disrupted settled practice in systems that value expertise, predictability, and risk avoidance.
Courts are not medicine. But they are institutions. And institutions behave in remarkably similar ways.
In Utah custody and parent-time cases, one of the most persistent examples of institutional resistance is the reluctance to hear directly from children, on the record, about their own lived experience.
That resistance is usually framed as concern for children. In practice, it is more often about something else.
Resistance Is Not Proof of Error
Resistance Is Not Proof of Wisdom
Resistance Is Proof of a System Protecting Itself
Utah law makes a child’s lived experience central to custody determinations. The “best interest of the child” factors require courts to evaluate, among other things:
- the child’s emotional bonds with each parent;
- the child’s past and present parenting arrangements;
- the child’s developmental needs;
- the presence or absence of fear, coercion, emotional, and/or physical harm; and
- yes, even the child’s preferences, when the child is sufficiently mature.
These are not abstract concepts. They are experiential facts.
And yet, in practice, Utah courts often resolve these questions without ever hearing directly from the child on the record. Instead, the system defaults to intermediaries: guardians ad litem, custody evaluators, or second-hand accounts summarized later, and in a manner than is inherently vague and conclusory.
This is not because judges don’t care about children (although the more removed from the child’s testimony, the more prone one is to becoming complacent and apathetic). It’s because the system has learned to manage risk—and workload—by delegation.
This institutional habit has inexcusable adverse consequences.
What Evidence Could Possibly Be Better?
Take the statutory factors seriously for a moment. Not rhetorically, but literally.
How does a court meaningfully assess:
- whether a child feels safe with a parent (§ 81-9-204(4): (a), (a)(i) and (ii), (b), (c)(ii)(B), (c)(ii)(C), (c)(iii), (e), (f), (i), (k), (l), (m), (o), and (p)),
- whether a child experiences pressure or loyalty conflict (§ 81-9-204(4): (c)(ii)(B) and (C), and (k), (m), (o), and (p)), and
- whether a child’s resistance is fear-based, developmentally driven, or situational (§ 81-9-204(4): (a), (b), (d), (e), (f), (h), (i), (j), (k), (l), (m), (n), (o), and (p)),
without hearing from the child whose internal experience is being evaluated?
Alleged summaries are not evidence. So-called expert opinions (when there is no objectively verifiable record of the child’s actual interview(s)) are not really evidence either.
The statute does not require courts to guess. It requires courts to find facts. And facts come from evidence that can be examined, tested, and reviewed.
Which leads to the real point of resistance.
The Problem Isn’t Children Speaking
It’s Children Speaking On the Record
Much of the discomfort around child testimony disappears once we say the quiet part out loud: the resistance is not primarily to children being heard. It’s to children being heard on the record.
A record creates accountability.
A record requires explanation.
A record allows appellate review.
An off-the-record summary of what a child purported said (and did not say) cannot be cross-examined. A GAL’s or custody evaluator’s characterization cannot be meaningfully challenged if there is no record of the alleged underlying statements. Recommendations are meaningless when there is no way to verify the data that informed them.
This is not necessarily about bad motives. It’s about structural incentives. Records create work. Records constrain discretion. Records expose reasoning to scrutiny.
And systems, left to themselves, avoid that.
No, This Is Not About Dragging Kids onto the Witness Stand
At this point, the familiar objections usually appear:
- “You want kids subjected to hostile cross-examination.”
- “This will traumatize children.”
- “That’s why we have GALs and custody evaluators.”
None of that follows.
On the record judicial fact-finding plainly does not require adversarial theatrics. It does not require a child to sit through hours of questioning. And it does not require treating children no differently than adult witnesses.
Judicial questioning can be:
- brief,
- tailored,
- developmentally appropriate,
- and sensitive to vulnerability.
A judge asking, “How do you get ready for school?” or, “What happens if you’re scared at night?” or, “Is there anything you wish your parents understood better?”
These are not horror stories. They are quiet, clarifying conversations—often less intrusive than the repeated interviews children endure with evaluators, therapists, and professionals who never have to justify their summaries on the record. They are methodical, low-stakes, and predictable. And in a courtroom, predictability is a safeguard.
When conducted with the necessary care, these interviews are not theatrical or sensational; and this lack of the dramatic is not a failure of the process—it is evidence of an environment where the child’s voice can be heard without being weaponized. Steady, factual conversations place clarity of the record over the emotion of the conflict.
Delegation Is Not Neutral
Guardians ad litem and custody evaluators can have important roles, but they are not substitutes for judicial fact-finding when the statute places the child’s experience at the center of the analysis.
Delegation can become complacency. Summaries can replace evidence. And convenience can quietly override accuracy.
When courts rely exclusively on intermediaries, they are not avoiding harm. Rather, they are choosing a different kind of risk: the risk of deciding a child’s future without ever hearing, in a durable and reviewable way, from the child whose future is implicated.
The Question That Won’t Go Away
This is not a radical proposal. Utah law already permits judicial interviews of children. Nothing in the statute forbids them. Nothing requires courts to outsource this responsibility by default.
So the question remains: If a child’s lived experience is central to the legal standard, why is it so often the only evidence we refuse to hear directly and on the record?
That question is uncomfortable. But discomfort, by itself, has never been a reliable test of whether a practice is wrong or is overdue for change.
Utah Family Law, LC | divorceutah.com | 801-466-9277