Judges in child custody disputes should hear from children more often. A lot more often. It should be routine, the presumptive course, the default.
Not because children should decide custody (no one ever said they should). Not because every child is reliable (some will lie, but even then, that’s useful evidence). Not because children should be dragged into open court and cross-examined like hostile adult witnesses (no one is suggesting that either).
Judges should hear from children because children frequently possess a perspective and relevant information that no one else possesses, and because the truth does not become less important merely because one of the witnesses is young. When children have the greatest stake in the child custody and parent-time orders, it’s irresponsible to ignore, even rebuff, their input.
For years, courts and family-law professionals have relied on a familiar catalogue of excuses for keeping judges from hearing directly from children.
- Children will be traumatized.
- Children will feel forced to choose between their parents.
- Children are easily manipulated.
- Children may lie.
- Children may tell the judge what they think the judge wants to hear.
- Children lack the maturity to understand what is best for them.
- Judges are not trained therapists.
- The interview might damage the parent-child relationship.
- The child’s statements might be unreliable.
- The child should speak through a guardian ad litem, custody evaluator, therapist, parent coordinator, or some other adult intermediary instead.
These assertions are repeated so often that few examine them. They merely recite them as though repetition converted speculation into fact. It does not.
Everyone already knows or should know that:
- Children are not categorically incapable of providing useful information.
- Judges are not categorically incapable of speaking with children.
- A carefully conducted interview does not necessarily traumatize a child.
- And filtering a child’s account through a succession of adults does not necessarily protect the child or improve the quality of the evidence. Sometimes it does the opposite.
Every intermediary selects what to ask, what not to ask, what to remember, what to record, what to summarize, what to emphasize, and what to omit. By the time the child’s statements reach the judge, the court may (and likely does) receive less an account from the child than an adult’s interpretation of an adult’s recollection of what the child supposedly meant. That is not superior evidence merely because it arrives wrapped in professional credentials.
As more judges interview children, they will discover something the gatekeepers would prefer courts not discover: judges can learn a great deal from children. They can observe hesitation, confidence, fear, inconsistency, spontaneity, rehearsed language, unusual adult phrasing, and the difference between what the child wants and why the child says he or she wants it. And they can learn facts pertinent to resolving various issues in the case.
Judges will also discover that appropriately conducted interviews do not ordinarily produce the devastating harm that opponents have long predicted.
And when that becomes harder to deny, the resistance will not disappear. It will evolve. Once the old excuses are exposed for the bilge they are, new excuses will be fabricated.
The first generation of objections is broad and categorical: children should not be interviewed because interviews are harmful.
When actual experience undermines that claim, the objection will become individualized: perhaps interviews do not harm most children, but this child is different.
- This child is unusually anxious.
- This child is too fragile.
- This child is already overwhelmed.
- This child has been traumatized.
- This child cannot tolerate authority figures.
- This child will feel responsible for the outcome.
- This child’s therapist opposes it.
- This child has threatened to run away.
- And eventually, in some cases, this child will supposedly threaten suicide or other forms of self-harm if required to speak with the judge.
Any genuine threat of self-harm must be taken seriously. A court should not dismiss such a statement as manipulation merely because the timing is suspicious.
But taking a threat seriously is not the same as accepting the parent’s account uncritically. Nor does a threat automatically prove that the interview itself is dangerous or improper.
The court should ask when the threat arose. What exactly was the child told about the interview? Who first discussed it with the child? Was the interview described neutrally, or was the child warned that the judge would make the child choose between the parents? Did the child make the statement directly to a clinician, or is the court receiving it secondhand from a parent? Was the threat independently assessed? Does the child fear speaking with the judge, or does the child fear what will happen at home after speaking honestly? Those questions matter because a parent who is terrified of what a child may reveal has an obvious incentive to make the interview appear dangerous.
The more useful judicial interviews become, the stronger that incentive will become.
That does not mean every objection is dishonest. It means courts should recognize that objections can be instrumental. Their stated purpose may be child protection, while their actual function is to preserve adult control over what the court hears.
The excuses will change because the objective will remain the same: prevent the judge from obtaining useful, first-hand information that may contradict the preferred narrative.
This is also why courts should be skeptical when the proposed alternative is that the child’s views be reported exclusively by a therapist, evaluator, guardian ad litem, or parent who already opposes the interview. That does not solve the evidentiary problem. It restores the filtration the interview was intended to test.
No serious person should propose that every child testify in every case. Age matters. Development matters. Emotional condition matters. The nature of the dispute matters. The importance of the information matters. The manner of questioning matters. But those are reasons to design a sound process, not reasons to abolish the process.
A child may be interviewed privately by the judge. The interview may be recorded and sealed. Counsel may submit proposed questions. The court may prohibit the parties from interrogating the child afterward. A qualified neutral may be present where genuinely necessary. The judge may explain that the child is not responsible for deciding the case.
There are many ways to reduce risk without keeping the judge deliberately ignorant. Besides, ignorance has risks too.
A court can harm a child by refusing to hear information that exposes abuse, coercion, fear, manipulation, neglect, or a fundamentally false account of the child’s life. A court can harm a child by giving decisive weight to adults who claim to speak for the child while preventing the child from speaking. A court can harm a child by making life-altering decisions based on a sanitized professional consensus that collapses when tested against the child’s actual experience.
The question is not whether interviewing a child is perfectly safe. Almost nothing in contested family litigation is perfectly safe. The question is whether a careful judicial interview is likely to produce information valuable enough to justify the manageable risks. Increasingly, judges who conduct these interviews are learning that the answer is yes.
And as that truth gains traction, expect the old excuses to be retired and new ones to take their place. Courts should be ready for that.
Protect the child. Use appropriate safeguards. Investigate genuine risks. But do not permit an endlessly shifting series of untested objections to become a permanent veto over the truth.
Utah Family Law, LC | divorceutah.com | 801-466-9277