Summary: Proffers save time by letting lawyers tell the court what witnesses would say. That works well when the parties agree to proceed that way or when the court assumes the proffered facts are true and asks whether they are legally sufficient. The problem becomes different when a material fact is disputed and deciding it requires choosing whom to believe. Utah law permits proffers, but it also recognizes limits when credibility is critical and a party insists on presenting actual testimony.
What a Proffer Is
A proffer is counsel’s description of what a witness would testify to, or what a document would show, if the evidence were formally presented.
Utah procedure expressly recognizes proffers. Rule 108 refers to evidence presented “by proffer, testimony or exhibit.” Utah R. Civ. P. 108(c)–(e). Proffers can save substantial time by narrowing disputes and eliminating testimony the parties agree is unnecessary.
Krajeski v. Krajeski describes the legitimate version of this practice. Counsel states what the witness would say or what a document would show and, if the opposing party consents, the court may receive the evidence that way. 2025 UT App 19, ¶ 47 n.8.
But Krajeski also illustrates an important limit. Counsel’s unsworn factual assertion is not automatically a proffer, much less evidence. The court there relied on what counsel had said, but the Court of Appeals held that counsel was not a sworn witness and his statement could not substantively constitute evidence. Id. ¶ 47.
The Problem: Credibility Without Witnesses
Suppose Mother asks the court to restrict Father’s parent-time. Her lawyer proffers that the child told Mother that Father grabbed him and hurt him. Father denies it.
There are two different questions the court might be answering.
One is: Assuming Mother’s evidence is exactly what counsel says it is, is that evidence legally sufficient to support the requested relief?
The other is: Did Father actually grab the child?
The first can often be answered without resolving credibility. The second may not be.
The Utah Supreme Court confronted that problem directly in Kawamoto v. Fratto. There, the trial judge allowed one party to testify but, over objection, required the opposing party to present all of her evidence by proffer, including medical-expert testimony. The judge then resolved disputed factual issues in favor of the live witness, weighing his credibility and accepting his testimony as true.
The Supreme Court held:
“Where the credibility of a witness is critical to the outcome of the case, or where the disputed evidence touches on expert assessments and opinions, the court may not limit a party’s evidence to proffers from counsel.”
Kawamoto v. Fratto, 2000 UT 6, ¶ 9, 994 P.2d 187.
The Court vacated the judgment and ordered a new trial. Id. ¶ 20.
Krajeski later recognized that rule in the divorce context, observing that when a party insists that a witness testify, the court may not simply proceed by proffer. 2025 UT App 19, ¶ 47 n.8. That observation appears in a footnote and was not necessary to Krajeski’s holding, so Kawamoto remains the stronger authority.
The Real Fork
When a material allegation is disputed, the court should be clear about what it is doing.
The court can assume the moving party’s proffer is true and test whether it is sufficient. Under that approach, Mother still bears the burden of establishing the factual predicates necessary for the relief she seeks. A proffer does not reduce that burden and does not shift it to Father to prove the allegation false.
That inquiry should also include admissibility.
If Mother’s proffer consists of “the child told Mother that Father grabbed him,” and the statement is offered to prove that Father actually grabbed the child, the statement is hearsay unless an exclusion or exception applies. Utah R. Evid. 801(c), 802. The analysis is different, of course, if the statement is offered for a legitimate non-hearsay purpose or falls within an applicable hearsay exception.
Krajeski recognizes this distinction too. Even when the opposing party accepts that the witness would testify as proffered, the court may still have to decide an objection to the admissibility of the proposed testimony. 2025 UT App 19, ¶ 47 n.8.
The other course is to resolve whether the disputed event actually occurred. If that requires choosing between competing accounts and credibility is critical, Kawamoto says a court cannot force a party who objects to present the relevant evidence only through counsel’s proffer.
This does not mean every disputed fact at every commissioner hearing requires live testimony. Kawamoto arose from a trial, not a Rule 101 commissioner calendar, and Rule 108 expressly contemplates proffers in domestic-relations practice.
The narrower point is enough: proffers are efficient devices for presenting evidence; they should not become an excuse to obscure the difference between testing the sufficiency of an assumed fact and deciding the credibility of the people who dispute that fact.
Repetition Is Not Corroboration
Family-law allegations also tend to acquire apparent weight through repetition.
The child allegedly tells Mother. Mother tells the therapist. The therapist tells the PGAL. The PGAL tells counsel.
Several people now appear in the narrative, but there may still be only one source for the underlying allegation. Repetition is not necessarily corroboration, and multiple layers may create multiple hearsay problems rather than multiple independent pieces of proof.
That does not mean the allegation is false. It means the number of people who have repeated it should not be confused with the number of independent sources supporting it.
Temporary Does Not Mean “Close Enough”
This matters even at the temporary-order stage.
Temporary parent-time restrictions can remain in place for months. Temporary financial orders can affect housing, cash flow, and a party’s ability to continue litigating. Courts often have to make interim decisions quickly and on incomplete records, but limited information should produce appropriate caution rather than an unstated reduction in the burden of proof.
Utah has long recognized the due-process concern inherent in domestic-relations proceedings conducted initially through proffers. In Wiscombe v. Wiscombe, decided under an earlier commissioner procedure, the Utah Court of Appeals held that a litigant who had not received a complete evidentiary hearing before the commissioner was entitled to the requested evidentiary hearing before the district judge. 744 P.2d 1024, 1025–26 (Utah Ct. App. 1987).
That case predates current Rule 108 and should be understood as historical due-process authority, not as a description of today’s procedure. The current rule now expressly defines when testimony may be demanded from the judge reviewing a commissioner’s recommendation.
What to Do at the Commissioner Hearing
If the court intends to proceed by proffer and a material fact is genuinely disputed, make the record there.
State expressly that you do not consent to having that disputed factual issue resolved solely on competing proffers. Identify the precise fact, explain why it matters to the requested relief, and identify why resolving it requires a credibility determination.
Name the witnesses you would call and what they would establish. For example:
“Father would testify that no physical contact occurred, and Ms. Jones, who observed the entire exchange, would testify that she saw no grabbing.”
Make that proffer even if the commissioner declines to hear live testimony. Current Rule 108(c) generally prohibits evidence that was not presented to the commissioner from later being presented to the judge unless there has been a substantial change of circumstances. Preserving the substance of the evidence at the commissioner hearing therefore matters.
And make the evidentiary objection separately. If part of the opposing proffer is hearsay, lacks foundation, or has some other admissibility problem, say so.
Then Use Rule 108
Do not stop with the objection at the commissioner hearing.
Current Rule 108 gives a party 14 days to file a written objection after the commissioner makes the recommendation in open court. If the commissioner takes the matter under advisement, the 14 days run from service of the minute entry containing the recommendation. Utah R. Civ. P. 108(a).
The written objection must identify with particularity the challenged findings, conclusions, or recommendation. Id. 108(b).
Then request the hearing the rule provides.
In a domestic-relations matter other than a cohabitant-abuse protective order, Rule 108(c)(3)(A) gives a party, upon request, the right “to present testimony and other evidence on genuine issues of material fact relevant to custody.” For genuine issues of material fact concerning noncustody issues, Rule 108(c)(3)(B) gives the party a right to a hearing at which the judge may require testimony or proffers.
So preservation should be two-stage:
- Before the commissioner: object to forced resolution of the material credibility dispute by proffer, identify the witnesses, and make the substance of their evidence part of the record.
- Within the Rule 108 deadline: file the written objection and expressly request testimony under the subsection that applies.
A useful podium objection would be:
“Your Honor, we do not consent to resolving this material factual dispute solely by proffer. If the court assumes the moving party’s proffer is true, then the question is whether that evidence is admissible and sufficient to carry the moving party’s burden. But if the court intends to decide whether the event actually occurred, credibility is disputed. Father and Ms. Jones are available to testify, and we object to resolving that credibility dispute without hearing them.”
That makes the objection, identifies the witnesses, states what the dispute is, and preserves what you are asking the court to do.
Proffers Save Time. They Do Not Eliminate the Need for Proof.
Proffers belong in Utah family-law practice. Rule 108 expressly recognizes them, and many matters can be handled more efficiently because of them.
But efficiency has limits.
Kawamoto does not hold that every disputed fact requires testimony. Nor does Rule 108 abolish proffers when facts are contested.
What Kawamoto does hold is important enough: when credibility is critical to the outcome, a court may not force a party to present the relevant evidence only through counsel’s proffer. 2000 UT 6, ¶ 9.
A lawyer can tell the court what a witness would say. When the decision turns on whether that witness should be believed, the difference between the lawyer’s summary and the witness’s testimony matters.
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