In the prior discussion, I described a common feature of Utah custody and parent-time proceedings: courts routinely make findings about a child’s needs, attachments, and lived experience without hearing directly from the child. That practice is often defended on prudential grounds and rarely questioned as a matter of routine. The next, more precise question is a narrower one: what does Utah law itself actually require courts to consider when making custody determinations—and what does it say, or not say, about how that information is to be obtained?
What the Statute Asks Courts to Decide
Utah’s custody factors statute directs courts to determine custody and parent-time according to the child’s best interests, assessed through a nonexclusive list of factors. Those factors are broad and fact-intensive.[1] They include a child’s emotional needs, developmental stage, relationships with parents and siblings, patterns of caregiving, exposure to conflict, demonstrated parental involvement, and the child’s sense of safety and stability.
Some of these considerations are outward-facing and observable. Others are internal, experiential, and difficult to infer secondhand. Taken together, the statute asks courts to form a detailed picture of a child’s daily reality—not in the abstract, but as it is actually lived.
What the Statute Restricts—and What It Leaves Unresolved
Utah law is not silent on children’s participation in custody proceedings. Section 81-9-204(5) reflects a clear legislative concern with protecting children from being compelled to testify at the insistence of a parent, and with avoiding formal, adversarial examination of minors. The statute limits when a child may be required to testify, authorizes in-camera judicial interviews under defined circumstances, and emphasizes that a child’s expressed desires are neither controlling nor determinative.
What the statute does not do, however, is specify how courts are to assess the many best-interest factors that depend on the child’s lived experience when no interview is conducted. Nor does it mandate reliance on any particular intermediary, professional, or evidentiary substitute. The law carefully regulates compulsion and form, but it leaves unresolved a more basic question: how courts are to know what the statute asks them to evaluate when the child’s own account is absent from the record.
The Child as More Than a Witness to Preference
The Child as a Witness to Statutorily Relevant Facts as Well
In custody proceedings, children are frequently treated as potential witnesses only to their subjective preferences—what they want, where they wish to live, or how they feel about a particular arrangement. That framing corresponds to the statute’s express permission to consider a child’s stated wishes. But it materially understates the role the statute assigns to the child’s lived experience.
Sections 81-9-204(3) and (4) require courts to assess a wide array of best-interest factors that concern observable conduct, functional capacity, and day-to-day caregiving realities. These include, among other things, 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; patterns of caregiving; and the quality of the child’s relationships within the family system.
As a factual matter, children may have firsthand knowledge relevant to many of these considerations. A child may directly observe who provides daily care, who attends to medical or educational needs, how routines are maintained, and how discipline is administered. A child may observe how parents communicate during disagreement, whether conflict is contained or escalated, and whether contact with the other parent is facilitated or undermined. A child may also observe functional impairment—such as intoxication, emotional volatility, neglect, or unpredictability—that bears on a parent’s ability to meet the child’s needs, even if the child lacks the capacity to identify the underlying cause or assign a clinical label.
This does not imply that a child is competent to diagnose substance abuse, assess moral character, or evaluate parental fitness in a normative sense. It does mean that the statutory factors courts are directed to consider extend well beyond internal preference and include matters as to which the child may be a percipient witness. The statute does not limit the child’s relevance to feelings or wishes; it encompasses conduct, relationships, and lived conditions that may be directly experienced by the child.
How Practice Commonly Resolves the Tension
In most cases, courts obtain this information indirectly. Parents testify. Evaluators interview family members and issue reports. Guardians ad litem summarize their impressions. Therapists provide context. These mechanisms are familiar, professionally mediated, and often chosen out of a desire to protect children from the burdens of direct participation.
Over time, this mode of practice has come to feel natural. It supplies courts with usable information while minimizing perceived risk. But it is important to recognize that this approach reflects custom and institutional habit, not a statutory directive. The law authorizes it, but it does not require it.
The Unresolved Coexistence
The result is a custody framework in which courts are asked to make detailed findings about a child’s internal experience and external reality, while often relying almost entirely on adult intermediaries to supply the underlying facts. Utah law neither commands nor forbids this approach. It simply leaves the tension in place.
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, unredacted, unfiltered, firsthand account.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] See Utah Code § 81-9-204(3) and (4):
(3) In determining any form of custody and parent-time under Subsection (1), the court shall consider:
(a) for each parent, and in accordance with Section 81-9-104, evidence of domestic violence, physical abuse, or sexual abuse involving the minor child, the parent, or a household member of the parent;
(b) whether the parent has intentionally exposed the minor child to:
(i) pornography; or
(ii) material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-5c-101; and
(c) whether custody and parent-time would endanger the minor child’s health or physical or psychological safety.
(4) In determining the form of custody and parent-time that is in the best interests of the minor child, the court may consider, among other factors the court finds relevant, the following for each parent:
(a) evidence of psychological maltreatment;
(b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the minor child, including the minor child’s:
(i) physical needs;
(ii) emotional needs;
(iii) educational needs;
(iv) medical needs; and
(v) any special needs;
(c) the parent’s capacity and willingness to function as a parent, including:
(i) parenting skills;
(ii) co-parenting skills, including:
(A) ability to appropriately communicate with the other parent;
(B) ability to encourage the sharing of love and affection; and
(C) willingness to allow frequent and continuous contact between the minor child and the other parent, except that, if the court determines that the parent is acting to protect the minor child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and
(iii) ability to provide personal care rather than surrogate care;
(d) the past conduct and demonstrated moral character of the parent as described in Subsection (9);
(e) the emotional stability of the parent;
(f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;
(g) the parent’s reason for having relinquished custody or parent-time in the past;
(h) duration and depth of desire for custody or parent-time;
(i) the parent’s religious compatibility with the minor child;
(j) the parent’s financial responsibility;
(k) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the minor child’s best interests;
(l) who has been the primary caretaker of the minor child;
(m) previous parenting arrangements in which the minor child has been happy and well-adjusted in the home, school, and community;
(n) the relative benefit of keeping siblings together;
(o) the stated wishes and concerns of the minor child, taking into consideration the minor child’s cognitive ability and emotional maturity;
(p) the relative strength of the minor child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the minor child; and
(q) any other factor the court finds relevant.