In Utah child custody and parent-time disputes, courts routinely defer to a familiar class of professionals: private guardians ad litem (PGALs) and custody evaluators.
These professionals are held up as “child whisperers,”[1] possessing a near-mystical ability to elicit speech from children and to decode their psyches that mere judges and trial lawyers couldn’t possibly possess. But if we pull back the curtain, we find a system built on marginal training, astronomical costs, and a stunning lack of transparency.
Questioning children in custody and parent-time disputes requires care. But to conclude from that premise that only these experts should be allowed to obtain and present children’s testimony is a leap that doesn’t survive rational scrutiny. And it is a costly leap as well, both financially and legally.
Because even if these professionals are somewhat better at interviewing children (and that is far from clear), that alone does not justify replacing direct, reviewable evidence with the filtered, unrecorded summaries these professionals provide.
That is the system we have created. And it does not hold up to scrutiny.
At bottom, this is not about who asks the questions. It is about whether the court receives evidence—or a summary of it.
The Myth of Superior Training
The primary justification for appointing a PGAL or custody evaluator is their “specialized training.”
But what does that actually mean?
A custody evaluator may have a mental health background, but rarely is that training devoted to forensic factfinding. A PGAL is often an attorney who has completed some CLE hours on child-related issues, including some basic interviewing techniques.
That kind of training does not create a class of professionals uniquely qualified to obtain and interpret a child’s testimony.
Even assuming that training has value, it is not rare, and it is not difficult to acquire. The core skills involved—asking open-ended questions, avoiding leading language, allowing space for response, avoiding imposed narrative, and observing responses—are neither exotic nor inaccessible. They are well within the reach of any competent lawyer or judge and can be learned, refined, and applied in short order and without difficulty.
Even If They’re Better—So What (How Much Better)?
Let’s assume, for the sake of argument, that PGALs and evaluators are somewhat better at interviewing children.
That assumption is not just academic. It is the premise used to justify the system itself. Courts do not appoint PGALs and custody evaluators for free. They impose thousands—sometimes tens of thousands—of dollars in additional costs on the parties based on the belief that this marginally better training produces better information. These professionals—and the courts who appoint them—justify that cost, implicitly or explicitly, by the idea that these professionals will obtain something closer to the truth than the ordinary tools of the legal process.
What follows from that assumption is not what the current system claims. The legal system does not exclude firsthand testimony simply because someone else might (might) summarize it skillfully (and without an underlying record). It does not:
- Replace witnesses with expert summaries
- Replace depositions with secondhand reports
- Replace testimony with interpretation
It favors just the opposite:
- Direct testimony over summaries
- Recorded evidence over recollection
- Cross-examinable statements over insulated opinions
Yet in child custody disputes, we invert those principles.
Instead of hearing from the child directly—through an in camera interview or a recorded deposition—we rely on a third party to:
- Ask the questions
- Select what matters
- Interpret the answers
- Present a summary
Even if the interviewer is marginally better at asking questions, that does not justify replacing the evidence itself with the interviewer’s unrecorded, subjective version of it.
That is not how evidence works anywhere else in the legal system.
The Deposition vs. The Summary
The contrast becomes even clearer when you look at how evidence is preserved.
A child’s deposition:
- Is recorded
- Produces a verbatim transcript
- Can be reviewed, challenged, and tested
A PGAL or evaluator’s report:
- Is not a recording
- Is not verbatim
- Cannot be meaningfully cross-examined as to what was actually said
These are not equivalent forms of evidence.
One creates a record.
The other replaces the record.
If accuracy matters—and in child custody disputes it matters enormously—this distinction should not be treated as trivial.
The Economic Barrier to Being Heard
Layered on top of this evidentiary problem is cost.
When a court appoints a PGAL or evaluator, it is not simply choosing a method of gathering information. It is imposing a financial condition on whether that information will be gathered at all.
- The Judge’s Interview: $0. It’s part of the public service you already pay for with your taxes.
- The Attorney Deposition: Part of your existing legal fees, often much lower than a new expert retainer.
- The Expert: $3,000 to $20,000+ in new retainers, followed by months of delays.
The result is an informal (perhaps in the past even inadvertent) but real “pay-to-play” dynamic. If you cannot afford the expert, you may not get your child’s voice meaningfully before the court. That should give pause.
The Black Box Problem
If PGALs and custody evaluators are truly applying a specialized, reliable method, they should be the first people demanding their interviews be recorded.[2] Their work should be transparent and verifiable; it is often neither.
In many cases:
- Interviews are not recorded
- Questions are not preserved
- Responses are filtered through memory and interpretation
What the court receives is a processed, abbreviated, second-hand product, not the underlying interaction.
This creates a “black box”:
- You cannot see what was asked
- You cannot hear how the child responded
- You cannot evaluate tone, hesitation, or context
And yet the resulting opinion is often treated as authoritative.
If this were a scientific process, it would be observable and replicable. If it cannot withstand review, it is not strengthened by secrecy.
The Standard Justifications—And Their Limits
PGALs and custody evaluators fight recording so tooth and nail. Why?
The system persists because of a familiar set of justifications.
They claim it “stifles the child” or “causes trauma.” In reality, they are protecting their own professional mystique. They know that if those interviews were recorded:
- The world would see how “un-magical” and basic their questions actually are.
- Lawyers could identify the leading questions and biases used to steer the child’s narrative.
- The “Black Box” of their clinical opinion would be replaced by actual, reviewable evidence.
The refusal to record is difficult to reconcile with any claim of confidence in the method.
Dismantling the Excuses
When challenged, the industry relies on a predictable script of objections, none of which hold water.
“Recording makes children nervous.”
Children today grow up surrounded by cameras. They are more comfortable with a digital recorder than the evaluator is. More importantly, the issue is not whether the process is perfectly comfortable. It is whether it is accurate and reviewable.
“Parents might retaliate if they hear the recording.” The evaluator is already going to summarize the child’s words in a written report. A recording doesn’t create a new risk; it simply ensures evaluators don’t misquote the child to fit their own biases.
“This is a clinical process, not a legal one.” Then it should not be used as a substitute for legal evidence. If it informs the court, fine. If it replaces the record, that is a different matter. Besides, if it’s “clinical,” it should be observable and replicable. That is the definition of science. If it only happens in the dark, it’s a hunch, not a diagnosis.
“Children should be protected from testifying.” Children are already questioned. The only difference is whether that questioning is visible and accountable.
What This System Actually Does
Taken together, the current approach does something unacceptable anywhere else in the legal system:
- It replaces firsthand testimony with summaries
- It replaces a record with no record
- It replaces cross-examination with deference
And it does so based on the assumption that a third party’s interviewing skill and presumed good intentions justifies that substitution.
That assumption is the weak point.
A More Coherent Approach
None of this requires eliminating PGALs or custody evaluators entirely. It requires putting them in their proper place.
Utah law does not impose a categorical bar on child testimony. It limits compulsion, not willingness, and requires courts to consider whether other reasonable methods exist—not to default to summaries. If a child is willing to testify:
- The court can conduct an in camera interview (direct and wholly from the child’s mouth to the court’s ear)
- Counsel can conduct a recorded deposition
- A clear, reviewable record can be created
Experts, if used at all, should supplement that record—not replace it.
That is how evidence is handled everywhere else. There is no good reason for child custody disputes to be different.
Conclusion
Courts are capable of hearing from children in a controlled, appropriate way. Lawyers are capable of creating a reliable record without irreparably harming a child. The legal system already knows how to handle testimony from witnesses of all ages and in different circumstances without having to resort to an expert class of interviewer in child custody and parent-time disputes.
What the system should not do—especially in cases that shape a child’s life as radically as do custody and parent-time awards—is substitute summary and interpretation for evidence, charge a premium for it, and call that an improvement.
The “Child Whisperer” persona only works in the dark. If accuracy, accountability, and fairness matter, the answer is not more layers. It is more light.
Have you been forced to pay for a PGAL who refused to record their interview? Share your story with me, please. eric@divorceutah.com.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] The phrase “child whisperer” is a reference to The Horse Whisperer (1998), and the broader “whisperer” trope it popularized—which implies a heightened, almost preternatural ability to communicate, understand, and interpret behavior beyond what can be readily observed, recorded, or tested.
[2] In criminal child abuse cases, forensic interviews are recorded to ensure accuracy and prevent leading questions; it ensures the interview can be reviewed for accuracy, context, and the use of leading or suggestive questioning and other forms of improper influence.