In a Utah personal injury case, if a doctor testifies that a low-speed collision caused a traumatic brain injury, that opinion will usually face meaningful scrutiny under Rule 702 of the Utah Rules of Evidence. Courts may require the expert to identify supporting literature, explain the methodology used, account for error rates, and demonstrate that the opinion rests on something more than intuition or professional confidence.
But in child custody disputes—cases involving one of the most fundamental liberty interests recognized in American law—the evidentiary culture often looks very different.
After nearly thirty years practicing Utah family law, I have watched courts apply rigorous skepticism to financial experts, engineers, accident reconstructionists, and medical causation testimony while simultaneously treating custody evaluators as quasi-judicial authorities whose conclusions are rarely subjected to equivalent methodological scrutiny.
That asymmetry deserves attention and correction.
The “Black Box” Problem
Utah custody evaluators often conduct extensive interviews with parents, children, teachers, therapists, and collateral sources. They then produce reports capable of dramatically influencing custody outcomes.
But much of the evaluator’s factual foundation is effectively unreviewable.
The interviews are typically not recorded. Statements are filtered through evaluator summaries rather than preserved directly. Many conclusions rely heavily on subjective interpretation rather than reproducible methodology.
As a result, judges are frequently asked to rely on conclusions without meaningful access to the underlying information from which those conclusions supposedly emerged. In practical terms, the process becomes an evidentiary “black box”: information goes in, recommendations come out, but neither the parties nor the court can fully examine what happened in between.
That opacity creates a deeper problem: credibility determinations are ultimately legal determinations reserved to the finder of fact—the judge—not to a custody evaluator.
A custody evaluator is supposed to provide psychological insights, behavioral observations, and professional analysis. The evaluator is not supposed to function as a substitute judge deciding whose account is “true.” But when child interviews occur inside an unrecorded evidentiary black box, the evaluator inevitably becomes the sole interpreter of the child’s statements, tone, demeanor, and perceived reliability.
At that point, the court is often no longer evaluating the child’s actual statements. The court is evaluating the evaluator’s characterization of those statements.
That distinction matters enormously.
Without a preserved record, neither the court nor the parties can independently assess whether questions were leading, whether important context was omitted, whether inconsistencies were explored fairly, whether interview conditions affected reliability, or whether the evaluator’s summary accurately reflects the interaction as a whole.
That is not an acceptable evidentiary model for cases involving parental rights and the future of children.
Credentialing Is Not the Same as Validation
Too often, the inquiry effectively ends once the evaluator has the “right CV.”
If the evaluator possesses the expected licenses, certifications, training hours, affiliations, prior appointments, and polished courtroom demeanor, courts frequently treat the evaluator’s conclusions as presumptively reliable before any serious examination of methodology even begins.
But credentials establish qualification to testify. They do not establish that the resulting opinions are methodologically sound, scientifically reliable, or evidentially testable in a particular case.
Rule 702 was designed precisely to prevent courts from substituting professional status for evidentiary reliability. Yet in custody litigation, courts sometimes drift into a form of credentialism where licensure itself becomes a proxy for reliability.
Too often, evaluators offer sweeping conclusions about “emotional safety,” “coercive dynamics,” “alignment,” “protective parenting,” or “alienation” without clearly identifying the methodology used, the scientific support for the conclusion, competing explanations, or the extent to which the opinion depends on subjective interpretation.
In other areas of litigation, courts routinely ask experts a straightforward question:
“How do you know?”
In family law, courts sometimes settle for:
“Because the evaluator said so.”
Those are not equivalent standards.
At times, what is presented as clinical certainty is little more than subjective interpretation wrapped in professional terminology. Courts are occasionally asked to accept major custody recommendations based on vague behavioral concepts untethered to clearly articulated methodology or demonstrable scientific support.
That is not rigorous forensic analysis. It is often closer to professional intuition operating behind an evidentiary shield.
Why Rule 702 Challenges Often Go Nowhere
Custody evaluators serve an important institutional function. Family courts are overloaded. Judges operate under enormous docket pressure. A lengthy custody evaluation often functions as an organizational shortcut—a synthesized narrative helping courts process emotionally and factually complicated cases more efficiently.
That incentive structure matters.
A serious Rule 702 hearing requires time, judicial labor, and a willingness to scrutinize methodologies courts may have accepted for years with relatively little resistance. As a result, Rule 702’s existence does not necessarily guarantee meaningful gatekeeping in practice.
A Serious Reform Worth Considering
Utah should seriously consider requiring recording of custody evaluation interviews absent extraordinary circumstances.
Not because recording would eliminate subjectivity. It would not. But because transparency reduces the harm unchecked subjectivity can cause and permits meaningful scrutiny of the process itself.
Custody evaluator opinions shape custody outcomes. They must be subjected to the same evidentiary rigor expected elsewhere in the legal system. A professional license is not a substitute for transparency, methodological rigor, or testable reasoning. The more consequential the decision, the greater the need for meaningful scrutiny.
Given the enormous weight courts place on custody evaluator opinions, courts must insist on methodologies capable of withstanding meaningful examination. Parents and children deserve no less. Courts must not lower evidentiary standards simply because the subject matter is family law.
Utah Family Law, LC | divorceutah.com | 801-466-9277