In my opinion (as a divorce and family law attorney for the past 27 years), a “less is more” approach is needed at this point. What do I mean?
For one, nowadays we have mental health professionals involved in many child custody cases from the get-go: “therapy or “counseling” for the children while the case is pending in the courts, custody evaluations conducted by psychologists and/or psychiatrists, social workers, marriage and family therapists, mental health counselors, and then post-decree “therapy or “counseling” for the children as well. Why? Not because it’s obvious in every child custody dispute that children are suffering so much mentally and emotionally that they need therapeutic or professional intervention but because it makes the courts look attentive and caring by ordering therapy and counseling for children without it costing the judge or commissioner a penny and without the judge or commissioner having to do anything else (i.e., all the work of paying for, getting to and from, and going through the process is left to the parents and children). Ordering parents and/or children into therapy or counseling as a knee-jerk reaction to every child custody case is not only irresponsible and lazy, but it can also do more harm than good.
We need to have mental health professionals less involved in child custody litigation generally and more carefully and competently involved if they must be involved. This is especially true in the process of analyzing and determining the custody and parent-time awards. Why? I can’t put it better than this (on the subject of custody evaluators):
What originally commenced, and was thought to be a good idea as a judge’s assignment of fairly narrow tasks designed to streamline fact-finding and protect individuals’ therapy records (e.g. asking a social worker to do a home study, e.g. asking a psychologist to opine on the possible effects on functioning of a party’s known or suspected personality disorder or state of depression when mental health already is at issue) has burgeoned into a free-for-all in which a panoply of MHPs [mental health professionals] make work and involve themselves in the family court system at enormous cost and detriment to the parties with expensive litigation-exacerbating processes, trials-within-trials, experts and counter-experts, and inevitable referrals to additional MHPs (often cronies) for all manner of alternate dispute resolutions and sometimes endless (and often utterly unproven) therapies. (Child Custody Evaluations: Reevaluating the Evaluators | research on family law politics and child custody (thelizlibrary.org)
Recommendations from a custody evaluator are so subjective and pseudo-scientific as to be either evidentially worthless at worst or at most nowhere near worth the expenditure of time, money, and effort that they entail compared to other, more accurate and reliable, faster, and less expensive ways to conduct this kind of investigation/discovery.
In Utah, there is an almost universally institutional aversion to having children speak for themselves on the subjects that pertain to the child custody and parent-time awards. It is as frustrating as it is puzzling when a court that is asked to interview a child in a custody dispute case refuses to do so by asserting that a custody evaluation (or even worse, the appointment of a PGAL) is a better option for obtaining a child’s testimony. There is no evidentially better way than to hear from the child directly and for and on the record than direct testimony. All of the arguments against child testimony for and on the record (regardless of whether it is a judge, commissioner, or attorney who questions the child) are patently without merit:
Argument:
An interview for the record will or may traumatize (whatever that means) the child.
Why it is without merit:
There is no evidence that this is true. That which is asserted without evidence is dismissed without evidence. Besides, I have interviewed children before (in a deposition, no less) without the child witness being harmed in any way; indeed, the children who I have questioned were grateful that their voices were heard in a matter in which they had the greatest stake.
Argument:
A child is traumatized by simply knowing his/her testimony is or will be recorded.
Why it is without merit:
If a court tries to ban a record of testimony and to force upon itself and the parents a second-hand (i.e., hearsay) account of alleged (as opposed to verifiably recorded) testimony, then whether there ever was any testimony—and what was or was not testified to—is anyone’s guess.
Argument:
Experts in clinical social work, psychology, psychiatry, marriage and family therapist, or clinical mental health counseling are better at eliciting the truth from a child than a judge or commissioner or attorney.
Why it is without merit:
Even if this argument were true, the expert’s purported truth-eliciting skills can neither be verified nor refuted when there is no record of what the child was asked and what the child said (or did not say) in response. If child interviews were recorded for and on the record, it would be much easier to establish whether and to what degree the interview was impartially, competently, credibly, and probatively conducted, regardless of who questions the child.
Argument:
Children are per se incompetent witnesses.
Why it is without merit:
That hasn’t been true since the mid-70s. See Utah Rules of Evidence. Rule 601(a): “Every person is competent to be a witness unless these rules provide otherwise.” The rule makes no exception for children. See also Utah Code § 78B-1-127. Witnesses—Competency: “Every person is competent to be a witness except as otherwise provided in the Utah Rules of Evidence.” Besides, the only way to know if a child is not a competent or credible witness is . . . to talk with the child to find out.
Argument:
A court is not bound to base its child custody and/or parent-time order what a child wants, so hearing from the child is not important.
Why it is without merit:
This is a red herring. Child testimony does not necessarily consist solely of the child merely expressing his/her desires. Even so, a child witness’s desires (especially when, but not only, when the child articulates the bases for those desires) are clearly relevant. Even if the testimony reveals the child was equivocal, or lied, or was coached, that evidence has value in its own right when deciding custody and parent-time matters.
Argument:
Obtaining child testimony on the record places the child in the unenviable position of having to choose between his/her parents.
Why it is without merit:
No, it does not. First, whether a child’s interview is or is not merely recorded does not give a child the impression that he or she is being placed in the position of having to choose between his parents. If it were true that questioning a child on subjects relevant and material to the child custody and parent time award decisions would inexorably place the child in a position of having to choose one parent over the other, then appointing a custody evaluator to conduct the interview would not prevent that from happening anyway. Second, interviewing a child on subjects material and relevant to the custody and parent time awards does not require a child to “pick” his/her favorite parent or relegate or condemn one parent to second class status. Thoughtfully and sensitively questioning a child is not hard to figure out and do, and the last person we need to do it is a $3,000-$5,000 to $7,000+ custody evaluator when the court can do so free of charge and on the record. A custody evaluation is not needed or warranted when the court can hear from the parties’ child directly, in the child’s own voice and in his own words.
Utah Family Law, LC | divorceutah.com | 801-466-9277