When the interviews that shape custody decisions remain inside a black box, the court is asked to trust what it cannot independently verify.
In Utah child custody disputes, custody evaluations often influence the outcome.
Judges rely on custody evaluations. Attorneys build strategy around them. Parents structure their cases in response to them.
And yet, in many cases, the interviews that form the backbone of the evaluation are not preserved by authenticated contemporaneous verbatim record via unedited audio-visual capture (what I will shorten to “unrecorded interviews”).
Instead, the court, the attorneys, and the parents receive a narrative summary from the evaluator. The foundational interviews themselves remain inside a procedural black box—inaccessible in their original form, shielded from independent verification, and functionally unreviewable. That is not a small procedural detail. It is an evidentiary design choice. And it deserves scrutiny.
The Central Question
If a custody evaluation materially influences a determination under Utah Code § 81-9-204, and that evaluation is built on unrecorded interviews, is the resulting opinion meaningfully testable in an adversarial system?
That is the issue. Not whether evaluators are well-intentioned. Not whether judges are trying to do their best. But whether the structure matches the weight placed upon it.
What Happens in Practice
A custody evaluator interviews the child, the parents, and collateral sources.
Those interviews are then summarized by the custody evaluator. If called to testify, the evaluator recounts statements attributed to those interviewed.
The child rarely, if ever, testifies directly.
Yet the interview of the child is an unrecorded interview. There thus exists no independent and objectively verifiable record of the interview’s paralinguistic characteristics, pragmatic and situational context, interrogative construction, or interviewer–subject interactional dynamics.
The Current “Clinical” Practice
Filtered Narrative: The evaluator’s summary of the child’s “preferences” under § 81-9-204.
Secondary Recounting: Statements from collateral sources (teachers, therapists) summarized in the report.
Subjective Documentation: The evaluator’s memory-based notes or paraphrasing of the interviews.
Insulated Methodology: Cross-examination limited to what the evaluator chose to write down.
The Rule 702/703 Forensic Standard
Primary Data: The child’s actual tone, pauses, and “paralinguistic” cues that indicate pressure or coaching.
Foundational Reliability: The ability to verify if the evaluator used “leading” or “suggestive” interrogative construction.
Objective Capture: An authenticated contemporaneous verbatim record allowing for independent “peer review.”
Meaningful Scrutiny: The “Gatekeeping” requirement to test whether the opinion is based on “sufficient facts or data.”
Cross-examination is limited to what the evaluator chose to document.
In effect, the evaluator becomes the sole narrator of statements made by others — statements that would be labeled hearsay in any other context. That is a concentration of evidentiary power.
“We Don’t Dictate Professional Methodology”
Attorneys who ask courts to require recordings of custody evaluator interviews are often told that courts should not micromanage clinical practice. But once an evaluator’s opinion is offered in court, it is not merely clinical. It is forensic.
Under Utah Rules of Evidence Rule 702, judges evaluate whether expert testimony is based on reliable principles and methods. Under Rule 703, they consider whether the underlying facts or data support the opinion. That gatekeeping role necessarily includes concern for foundational reliability. Demanding the underlying data isn’t micromanaging a clinician; it is fulfilling the judicial duty of gatekeeping.
If an expert’s opinion rests substantially on interviews that were not preserved in an authenticated contemporaneous verbatim record, the court is relying on secondary narrative rather than primary evidence.
The Hearsay Reality
Custody evaluations occupy a peculiar evidentiary space. Evaluators may recount out-of-court statements that materially influence findings. Technically, experts are permitted to rely on otherwise inadmissible information in forming opinions. But the practical effect is this: the evaluator’s summary becomes the functional equivalent of testimony — without the safeguards normally associated with testimony.
Ÿ No recording to test context.
Ÿ No way to assess whether questions were leading.
Ÿ No way to determine whether nuance was lost.
Ÿ No way to compare the summary to the source.
In most forensic disciplines, the absence of preserved foundational data would raise immediate concern. Why should custody evaluations be different?
This Is a Structural Defect — Not a Personality Critique
One need not assume bad motives to recognize a design flaw.
Even well-intentioned professionals operate within incentive structures. And the current structure in many custody evaluations is not neutral. A system that does not require preservation of foundational interviews:
Ÿ shields methodology from meaningful scrutiny;
Ÿ limits effective cross-examination;
Ÿ constrains appellate review;
Ÿ concentrates narrative control in a second-hand source;
Ÿ and materially reduces the risk of impeachment.
Those are not incidental byproducts. They are systemic failures.
The result is a process in which the most consequential evidence in a child custody case may exist only as filtered summary rather than authenticated primary record.
That is not a trivial omission. It is a structural defect.
Efficiency, convenience, or professional custom cannot justify evidentiary opacity in proceedings that determine where children live and how often they see a parent.
Good intentions do not cure or justify design flaws. Institutional comfort is not a substitute for procedural integrity.
Transparency Protects Everyone
Recording interviews would not merely protect parents. It would also protect:
Ÿ children from being misquoted and courts from being misled;
Ÿ evaluators from accusations of distortion;
Ÿ courts from relying on unreviewable narratives; and
Ÿ the legitimacy of the process itself.
If custody evaluations are influential enough to shape where children live and how often they see a parent, they more than warrant transparency.
A Hard Question for Courts and Practitioners
If an unrecorded interview materially shapes a judicial decision, and that interview cannot be independently reviewed, what exactly is being tested in cross-examination?
Memory?
Note-taking?
Professional credibility?
The underlying facts?
Adversarial systems were built on the fundamental principle that important evidence should be subject to meaningful scrutiny. When the most consequential interviews in a custody case exist only as summarized narrative, scrutiny is necessarily limited.
That is not an attack on evaluators. It is a challenge to the structure.
Parents Should Understand This
If you are a parent in a custody dispute, you should know the evaluator’s report may carry enormous weight. But unless interviews are recorded, there is no verbatim record of what was actually said. That reality should inform how seriously you approach the process.
Courts Should Confront the Tension
Courts face a choice:
Ÿ treat custody evaluations as advisory narratives — helpful but limited; or
Ÿ treat them as influential forensic evidence — and require corresponding safeguards.
What is difficult to defend is treating custody evaluations as highly influential while declining to require preservation of the foundational data on which they rest. That tension does not disappear simply because it is uncomfortable. It is a structural issue. And structural issues deserve honest examination.
No evidence should carry decisive weight while remaining insulated from decisive scrutiny.
Utah Family Law, LC | divorceutah.com | 801-466-9277