The Missing Step
Courts in child custody disputes routinely make determinations without ever hearing from the child directly—or even reviewing a complete and reliable record of someone who did.
That would be unremarkable if the child’s input were peripheral. It is not. In many cases, it is central, even crucial.
Instead, the court receives a report. A summary. A set of conclusions about what the child allegedly said, meant, or experienced.
This is not a question of preference or style. It is a question of method—whether the court is working from primary evidence or from a filtered account of it.
And once the underlying interaction is filtered, the loss is permanent. Interviewer competence, tone, context, sequence, and nuance do not survive compression. The court cannot reconstruct what it was never permitted to see.
That is not a marginal compromise. It is a structural deficiency in the court’s factfinding process.
Put plainly: that is the evidentiary equivalent of diagnosing and prescribing without examining the patient.
Examination and Its Substitute
The analogy holds because the functions are the same.
A physician examines a patient before performing treatment and making prescriptions affect that patient’s health. The examination is not ancillary. It is foundational.
In child custody disputes, the functional equivalent is straightforward: interviewing the child, or at minimum, reviewing a complete and faithful record of someone else’s interview.
What courts often receive instead is an inapt substitute: a PGAL report and/or a custody evaluation.
A narrative summary.
Those materials may (may) be useful. But they are not the underlying interaction. They are a reduced, mediated, and alleged version of it—someone else’s selection, characterization, and interpretation of what ostensibly occurred.
That distinction matters.
No one would accept a physician diagnosing a patient based solely on a written summary of another person’s impressions when the patient is available to be examined. The deficiency would be obvious.
It is no less obvious here.
The usual justification is practical: time constraints, docket pressure, efficiency. But a focused interview—or review of a recorded one—does not impose a material burden relative to the proceedings already underway. What it does is materially improve the evidentiary foundation on which the court relies.
That is not a difficult tradeoff.
What the Court Never Sees
When the court relies on summaries in place of the underlying interaction, it forfeits the very information it is tasked with evaluating.
Tone and delivery.
Meaning is often conveyed not just by what is said, but how it is said. Hesitation, uncertainty, emphasis, and affect are not incidental. They are frequently the substance of the communication. These features do not survive summary.
The questions and the method.
The court does not see how the information was elicited. Whether questions were leading, suggestive, incomplete, or otherwise flawed. Whether follow-up was adequate. Whether the setting influenced the response. These are not peripheral concerns; they go directly to reliability.
Good interviewers do not fear a record of their work. And where no record of an interview exists, the court has no basis to assess whether the interview process was sound.
Development and inconsistency.
Testimony is not a static product. It unfolds. It may be uneven. It may change. Those features often illuminate rather than undermine credibility. Summaries present conclusions. They do not reveal the path by which those conclusions were reached.
Credibility.
Courts are charged with assessing credibility. That function becomes attenuated when the source is filtered through an intermediary’s interpretation. What remains is not testimony, but a representation of it.
The Protection Rationale
The most common justification for this structure is protection of the child.
The concern is legitimate. Courts are rightly cautious about placing children in the middle of parental conflict or subjecting them to adversarial pressure.
But that concern does not resolve the problem.
The child is not being shielded from inquiry. The child is still being questioned. The difference is that the questioning occurs outside the court’s view and outside the record.
The choice is not between questioning and no questioning. It is between visible, reviewable interaction and opaque, unreviewable interaction.
Other disciplines regularly engage with vulnerable individuals under conditions that require both care and accuracy. The solution is not to eliminate examination. It is to conduct it appropriately and to preserve a reliable record.
Protection does not require opacity. And it does not require the court to proceed without access to the underlying evidence.
Interpretation in Place of Evidence
The deeper problem is not procedural. It is structural.
The system has, in many instances, shifted from gathering evidence to receiving interpretations of evidence.
The court is presented with conclusions, often confident and well-phrased, but without access to the underlying data that would permit independent evaluation.
Findings and conclusions without supporting data are speculation. Speculation is to the factfinder as noise is to a signal—distracting, unreliable, and properly disregarded. Properly disregarded because it lacks an evidentiary foundation the court can test, weigh, or verify.
When the underlying interaction is withheld, the court is left with assertions it cannot meaningfully examine.
This is not a question of distrust. It is a question of verifiability. The most consequential interaction in the case occurs outside the court’s view, and the court is then asked to rely on a description of that interaction rather than the interaction itself.
The Appearance of Reliability
This structure often appears reliable.
The reports are organized. The authors are credentialed. The conclusions are stated with confidence.
But none of those features substitute for access to the underlying interaction.
A well-written report can create the impression of completeness. It does not supply what is missing.
A physician’s report is only as reliable as the examination on which it is based—and the ability to review or replicate that examination if necessary. The same principle applies here.
A Sounder Approach
The problem is not difficult to identify, and it does not require an elaborate solution.
Direct judicial engagement, when appropriate.
Courts may conduct in camera interviews in age-appropriate, non-adversarial settings. This is a familiar judicial function, not an extraordinary one.
At minimum, a preserved record.
Where intermediaries are used, the underlying interaction should be recorded and preserved:
- Audio or video recording
- A complete, verbatim record
- Availability for judicial review and, where appropriate, adversarial testing
Why it matters.
A preserved record permits what the current structure often precludes: meaningful evaluation by the court, effective cross-examination, and appellate review grounded in actual evidence rather than summaries of it.
Less Than the Court Thinks
Courts often proceed as though they have received the child’s input.
What they have received, in many instances, is an account of that input—filtered, condensed, and interpreted.
No degree of institutional trust substitutes for evidence-based evaluation. When the court relies exclusively on summaries, it is accepting a version of events it cannot independently verify.
You cannot reliably decide what you have not examined—or at least reviewed in its original form.
Judicial Function
This is not an indictment of custody evaluators or guardians ad litem.
It is a recognition of what adjudication requires.
A system that substitutes summary for examination does not become more protective. It becomes less reliable.
Courts cannot evaluate what they are not permitted to see or refuse to see.
Utah Family Law, LC | divorceutah.com | 801-466-9277
