In most courtrooms, a litigant cannot restrict another person’s fundamental rights by repeating untested, out-of-court accusations. If a party tries to prove serious allegations through “someone told me” evidence, the objection is obvious: hearsay. If the party cannot show who said it, when, under what circumstances, and why it is reliable, the objection is just as obvious: lack of foundation.
But in Utah child custody disputes, family courts too often tolerate a lower standard.
Custody evaluators, private guardians ad litem, therapists, and other court-connected professionals can become conduits for information that no one can meaningfully test. A child is interviewed privately. A parent is accused by collateral sources. Therapy impressions are summarized. Family dynamics are interpreted. Then the court receives a recommendation that appears polished, neutral, and professional.
The problem is not that professionals are involved. They can serve a useful purpose. The problem is that their recommendations are too often treated as a substitute for admissible evidence.
That is the custody black box.
How the Black Box Developed
The modern custody black box did not appear out of nowhere.
For much of American legal history, custody decisions were governed by broad presumptions. At different times, the law favored fathers, then favored mothers under the tender-years doctrine. Those presumptions were often crude and unfair, but they were easy to administer. The court did not need a custody evaluator when the law had already supplied the answer.
That changed when courts and legislatures moved toward the modern best-interests-of-the-child standard. The change was necessary, but it created a new problem. “Best interests” requires the court to assess parental fitness, emotional bonds, safety, stability, developmental needs, child preference, family dynamics, and the practical realities of each household.
Judges are trained in law. They are not trained to conduct child interviews, diagnose family systems, evaluate trauma claims, or sort clinical insight from family-court theater. So the system created a workaround: appoint professionals to investigate, interview, filter, and recommend.
That workaround has become the problem.
The court-appointed professional is treated as the judge’s eyes and ears. The raw material—child interviews, parent statements, text messages, school information, therapy impressions, collateral contacts, and family accusations—is treated as too messy, biased, emotional, or sensitive for ordinary courtroom handling. The evaluator or GAL is expected to filter it and present the court with a clean conclusion.
But a filtered conclusion is only as reliable as the filter. If the parties cannot inspect the process, test the assumptions, review the interview methods, challenge omissions, and separate observation from hearsay, the court is not receiving better evidence. It is receiving a professionalized substitute for evidence.
Rule 703 Is Not a Hearsay Laundering Device
When lawyers object to a custody evaluator repeating what a child, parent, teacher, therapist, neighbor, or collateral source allegedly said, the usual answer is Utah Rule of Evidence 703. The argument is that experts can rely on inadmissible information if experts in the field would reasonably rely on it.
That argument skips the critical distinction.
Rule 703 allows an expert to base an opinion on facts or data that may not themselves be admissible. It does not transform those facts or data into substantive proof. The expert may be allowed to say, “I considered this information in forming my opinion.” That is not the same thing as proving the information is true.
If a child allegedly tells an evaluator, “My dad gets drunk and screams at me,” the evaluator’s reliance on that statement does not prove that father gets drunk or screams. The statement may help explain how the evaluator reached an opinion. It is not, by itself, admissible evidence that the alleged conduct occurred.
A court cannot admit an expert opinion under Rule 703 and then quietly treat the inadmissible foundation for that opinion as proven fact. That is the evidentiary sleight of hand Rule 703 is supposed to prevent.
Rule 703 also contains a demanding disclosure standard. Inadmissible underlying facts or data are not supposed to be dumped into the courtroom merely because the expert reviewed them. Their value in helping evaluate the expert’s opinion must substantially outweigh their prejudicial effect. The rule starts against disclosure.
That makes sense. Once a judge hears a damaging accusation repeated by a court-appointed professional, the bell cannot be unrung. Calling it “basis evidence” does not remove its prejudicial force.
Temporary Orders Are Not Evidence-Free Zones
The foundation problem becomes worse at the temporary orders stage.
Temporary orders often decide who lives in the home, who pays support, and how much time a parent has with his/her child while the case crawls toward trial. These orders are called temporary, but their practical consequences can last for months and sometimes shape the entire case.
The speed of temporary orders practice does not repeal the rules of evidence.
Utah Rule of Civil Procedure 101 requires evidence necessary to support a party’s position before a domestic relations commissioner to be presented by affidavit, declaration, or other admissible evidence. That requirement means something. It does not say rumor. It does not say speculation. It does not say whatever counsel can proffer at the lectern.
Proffer has a place. It can summarize what admissible evidence shows. It can help the commissioner manage a crowded calendar. But proffer is not evidence. It cannot convert inadmissible hearsay into admissible proof. It cannot supply foundation for documents that lack foundation. It cannot turn counsel into a witness.
Judicial economy is not a rule of evidence. Convenience is not due process.
The GAL Problem: Advocacy Is Not Evidence
The private guardian ad litem occupies a difficult structural position. A PGAL is an attorney appointed to represent the child’s best interests. The PGAL is not simply another party’s lawyer, but the PGAL is still a lawyer. He/she is not a sworn witness simply because the court wants to hear from him/her.
Utah law requires a PGAL who makes a best-interest recommendation to disclose the factors forming the basis of that recommendation. That requirement is important, but it does not make the recommendation evidence. It does not make the underlying statements true. It does not convert the PGAL into a witness.
A PGAL can advocate. A PGAL can recommend. A PGAL can identify the factors he/she considered. But a PGAL’s factual assertions are not evidence unless independently supported by admitted exhibits, sworn testimony, stipulation, judicially noticeable facts, or another recognized evidentiary basis.
This distinction is routinely blurred. A PGAL stands before the court and says, in substance, “The child told me X,” “the therapist believes Y,” “the school reported Z,” or “the home environment is concerning.” If those statements are not tied to admissible evidence, they are not proof. They are unsworn assertions by an advocate.
Attorney argument is not evidence. Giving the attorney a court appointment does not change that rule. Neutrality is not foundation. Appointment is not admissibility. Good intentions are not cross-examination.
The Unrecorded Child Interview Is the Heart of the Problem
The most serious version of the custody black box is the unrecorded child interview.
A custody evaluator or PGAL interviews a child privately. No recording is made. No transcript exists. Later, the evaluator or PGAL reports what the child supposedly said, what the child supposedly meant, what the child’s tone supposedly conveyed, and what conclusions should be drawn from it.
That is not a reliable evidentiary process. It is a memory-dependent summary of an unrecorded interview conducted outside the presence of counsel, outside the presence of the parties, and outside any meaningful opportunity for rebuttal.
The usual defense is that recording child interviews would harm children because hostile parents might misuse the recordings. That concern is real. It is not an answer.
Courts already know how to protect sensitive information. They issue protective orders. They restrict access. They allow attorney-eyes-only review. They seal records. They limit disclosure to rebuttal experts. They sanction misuse.
The choice is not between dragging children onto the witness stand and accepting an unreviewable black box. The proper third option is a protected record.
That matters because cross-examining an evaluator about an unrecorded interview is not the same thing as testing the interview itself. The lawyer can ask the evaluator what happened, but the lawyer cannot expose tone, sequence, wording, pressure, repetition, omissions, or suggestiveness unless there is a record.
Did the child volunteer the statement, or merely agree with a leading question? Was the question repeated until the preferred answer emerged? Were alternatives explored? Was context omitted? Did the evaluator mistake anxiety, loyalty conflict, coaching, fear, confusion, or developmental immaturity for reliable preference?
Without a recording, no one can reliably answer those questions.
Child custody disputes deserve the same seriousness given to other child-related forensic processes. A child’s words matter too much to be filtered through an unreviewable process.
Expertise Still Requires Foundation
Custody evaluators, PGALs, therapists, and other professionals have a place in family court. But their proper role is to assist the court in understanding evidence, not to replace evidence.
An expert may help the court understand patterns, risk factors, developmental concerns, parent-child dynamics, or the significance of particular conduct. But the facts underlying the opinion still need a reliable path into the record.
A sound custody recommendation should distinguish among four things:
- what the professional personally observed;
- what others reported;
- what the professional inferred; and
- what admissible evidence actually proves.
When those categories are collapsed, the recommendation becomes dangerous. Observation, hearsay, assumption, diagnosis, and advocacy all blend into a single professional conclusion. The conclusion then looks cleaner than the process that produced it.
A recommendation is only as strong as the foundation beneath it. When the foundation is hidden, the recommendation becomes an act of institutional trust. And “trust me” is not evidence.
Utah Family Courts Must Return to First Principles
The current system asks judges to perform an impossible mental exercise. They are expected to hear damaging hearsay from a custody evaluator or PGAL, consider it only for the limited purpose of evaluating a recommendation, and then avoid treating the same information as proof when making findings that affect a parent’s relationship with his/her child.
That fiction does not protect due process. It erodes it.
Family court cannot be the place where evidentiary discipline goes to die. The stakes are too high. Custody orders shape childhoods. Parent-time restrictions can damage relationships permanently. Supervision orders can brand a parent as dangerous before a trial ever occurs. Temporary orders can become the practical status quo long before admissible evidence is tested.
The solution is not complicated.
Courts should demand foundation. Lawyers should object when recommendations are used as evidence. Evaluators should identify what was observed, what was reported, what was assumed, and what was actually supported. PGALs should distinguish advocacy from evidence. Child interviews should be recorded, protected, and available for meaningful review by counsel and appropriate experts.
Utah family courts do not need less evidence because children are involved. They need better evidence because children are involved.
A parent should not lose time with his/her child because a professional says, “Trust me.” The rule should be simple: show the foundation, or do not ask the court to rely on it.
Utah Family Law, LC | divorceutah.com | 801-466-9277