In the prior two posts, I described a common feature of Utah custody and parent-time proceedings: courts routinely make findings about a child’s needs, relationships, and lived experience without hearing directly from the child, even where the governing statute requires assessment of matters children often experience firsthand. That observation naturally raises a narrower and more technical question—one that tends to generate more confusion than clarity: what, exactly, counts as “testimony” when the court hears from a child?
Much of the discomfort around hearing from children in custody cases stems from treating all forms of child participation as a single, undifferentiated category of “testimony.” Utah law, however, does not use the term that broadly. The statute draws several distinctions that are routinely blurred in practice. Clarifying those distinctions helps explain what the law actually regulates, and what it leaves unresolved.
I. Why the Term “Testimony” Does Too Much Work
In ordinary usage, “testimony” tends to mean any situation in which a person speaks to the court about facts. In custody disputes involving children, the term is often used even more loosely, encompassing everything from formal in-court examination to informal judicial inquiry, from expressions of preference to factual observation, and from firsthand accounts to adult summaries.
That collapse of categories matters. When all child participation is treated as equivalent to adversarial testimony, concerns about compulsion, trauma, and pressure quickly become dispositive of every other question. The statute itself, however, does not adopt that framing. It regulates some forms of child participation carefully, permits others explicitly, and remains silent about many.
This discussion addresses how Utah law categorizes and regulates different forms of child participation in custody proceedings; it does not examine when, whether, or under what conditions any particular procedure should be used.
II. Compelled Testimony Versus Court-Initiated Inquiry
Utah Code § 81-9-204(5)(a) restricts when a minor child may be required by a party to testify. The focus of that provision is compulsion—specifically, a parent forcing a child into the role of a witness as part of an adversarial contest. The statute requires a finding of extenuating circumstances and the absence of any other reasonable method before such compelled testimony may occur.
That restriction does not answer a different question: whether a court, acting on its own initiative, may seek information from a child when the court determines that doing so is necessary to evaluate statutory factors. The statute distinguishes between party-driven compulsion and court-initiated inquiry. Treating those as interchangeable obscures what the law actually regulates.
Nothing in § 81-9-204(5) purports to limit judicial inquiry to a child’s stated preferences, nor to define the absence of party-compelled testimony as the absence of relevant firsthand information.
III. Adversarial Testimony Versus In camera Judicial Interviews
The statute also distinguishes between adversarial testimony and judicial inquiry conducted under controlled conditions. Section 81-9-204(5)(c) expressly authorizes in camera interviews of children by the court, without the presence or consent of the parties, when the court finds that such an interview is necessary to ascertain the child’s desires regarding custody or parent-time.
Both adversarial testimony and in camera interviews involve a child speaking. But they are not treated identically under the law. One is subject to the rules and pressures of adversarial examination; the other is conducted by the court without cross-examination, and for the purpose of judicial fact-finding. Conflating the two under the single label “testimony” erases a distinction the statute itself draws.
IV. Stated Wishes Versus Factual Observations
The statute further distinguishes between a child’s stated wishes and other information relevant to the best-interest analysis. Section 81-9-204 permits courts to consider a child’s desires, with added weight given to older children, while making clear that those wishes are not controlling. That treatment of preference is explicit.
At the same time, §§ 81-9-204(3) and (4) require courts to assess a wide range of factors that do not concern preference at all. These include psychological maltreatment; responsiveness to the child’s physical, emotional, educational, medical, and special needs; parenting skills and consistency; co-parenting conduct; emotional stability; functional impairment due to substance abuse or other causes; exposure to conflict; caregiving history; and the quality of the child’s relationships within the family system.
Many of these factors turn on observable conduct and lived conditions. As a factual matter, children may have firsthand knowledge relevant to who provides daily care, how routines are maintained, how conflict is expressed, whether contact with the other parent is facilitated or undermined, and whether impairment, volatility, or neglect is present in the home. Recognizing that reality does not transform a child into an evaluator, diagnostician, or decision-maker. It simply acknowledges that the statute assigns evidentiary relevance to matters children may directly experience.
V. Evidence Versus Summaries About Evidence
Finally, the statute does not equate firsthand accounts with summaries offered by adults. In practice, courts often rely on reports and characterizations provided by evaluators, guardians ad litem, therapists, or parents themselves. Those mechanisms are familiar and professionally mediated, and they may serve important protective functions. But their prevalence is a matter of practice, not statutory command.
Nothing in § 81-9-204 declares that summaries are equivalent to primary evidence, or that a child’s own knowledge must be filtered through intermediaries to be considered at all. The law regulates compulsion, form, and weight. It does not resolve how courts are to evaluate statutory factors that depend on lived experience when the child’s own account never enters the evidentiary record.
It bears emphasis that nothing in this discussion turns on minimizing the emotional risks children may face in custody proceedings. Section 81-9-204 reflects a clear legislative concern with protecting children from compulsion, adversarial pressure, and inappropriate burden. Those concerns are real, and the statute addresses them directly through limits on compelled testimony and through regulation of form. The question examined here is a different one. It is not whether caution is warranted, but how a statute that requires courts to evaluate a child’s lived experience accommodates that caution without resolving, by default, questions of evidentiary source.
The statute requires courts to assess a child’s internal experience and external reality alike, yet leaves unresolved how either is to be reliably known in the absence of the child’s own firsthand account.
Utah Family Law, LC | divorceutah.com | 801-466-9277