In Utah child custody disputes, the voices of children are almost always filtered through court-appointed private guardians ad litem (PGALs) and/or custody evaluators. These intermediaries will claim to represent what the child told them in interviews without being held accountable for the completeness and accuracy of those claims.
I have yet to encounter a PGAL or custody evaluator who will make a sound-and-visual record of their interviews with children (or with any collateral sources they interview, but that is a subject for a different article) on and for the record. This patently cannot be justified, but boy how the PGALs and custody evaluators try anyway:
“Reasons” for not recording the child interview
“Recording PGAL or custody evaluator interviews with children in custody disputes can undermine the child’s sense of safety and candor.”
But just the opposite is equally true; a child’s sense of safety and candor can be undermined if the interview is not recorded. Now I get what those against recording mean: knowing their interviews are being recorded may cause some children crippling anxiety or fear that apparent might punish or even injure a child if he or she expresses sentiments about that parent which that parent dislikes or that cast that parent in an unflattering light.
The problem is that a child can suffer the same anxiety and fear about his or her statements getting back to a displeased and vengeful parent if his or her statements are relayed second hand by a guardian ad litem or custody evaluator. Worse, second-hand accounts may miss state or misconstrue the child’s words (whether intentionally or unintentionally) due to a lack of objectively verifiable recording.
“Knowing their words are permanently recorded could cause children to withhold critical information or feel pressured to align with one parent. Additionally, recordings risk misuse, further exposing the child to parental conflict.”
But again, the same can be said if the child’s own words are not recorded.
“PGALs and evaluators are trained to document findings objectively, and their reports suffice for court review without placing undue stress on the child.”
First, I can’t find any evidence that a skillfully conducted interview of the average/normal child Who is old enough and mature enough to engage in an interview subjects that child to “undue stress” (whatever that means).
Second, training does not mean a PGAL/custody evaluator is infallible, incorruptible, and/or unbiased. So what does “second-hand accounts of a PGALs/custody evaluator’s interview of the child ‘suffice’” mean? Why force upon the finder of fact the merely adequate (i.e., sufficient) when the complete is easily, safely, and inexpensively within reach?
“The priority should be preserving the child’s emotional well-being and fostering open, honest communication without fear of reprisal or exploitation.”
But, as I showed above, neither recording nor not recording the interview does not prevent reprisal against, or exploitation of, the interviewed child.
We would never consider a second-hand account from a key witness or from a party who had the greatest stake in the outcome of a case to be a competent way of obtaining that witness’s evidence, yet the overwhelming majority of judges and commissioners in Utah have no qualms over doing just that with the testimony of a child in a child custody case. Interview children on the record, ensuring that the children’s voices are heard without misrepresentation or other forms of distortion through a second-hand source. These children deserve no less. No one can honestly claim that such willful ignorance of fact subserves the best interest of the child.
The Problem with Current Practices
PGALs and custody evaluators act as intermediaries in custody disputes, interviewing children and presenting their findings to the court. However, this process has inherent flaws:
- Subjectivity and Bias: Evaluators may interpret a child’s words through their own biases or agendas, leading to misrepresentation of the child’s true feelings or preferences.
- Human error: As the game of Telephone taught us as children, truth and accuracy are quickly and easily lost when conveyed second-hand. Memories fade. A sound-and-visual recording does not.
- Lack of Transparency: Courts rely on evaluators’ reports without an objective record of what the child actually said, leaving room for disputes about the accuracy of the findings and of the evidence underlying them.
- Costly and Time-Consuming: Appointing PGALs or custody evaluators is expensive and prolongs the resolution of custody disputes.
The Solution – Using the Superior Resources We Already Have at Hand
Instead of PGALs or evaluators, judges and commissioners should either interview children themselves on and for the record or permit counsel for the parents to interview children on and for the record. Such an approach is superior because:
- Transparency: conducting interviews on the record ensures an objective and verifiable account of the child’s statements. This eliminates questions about whether the child’s words were accurately reported or misinterpreted.
- Professional Standards: Attorneys are trained in questioning techniques and are ethically bound to act with integrity, impartiality, and professionalism. They can frame questions appropriately without leading or intimidating the child.
If some suggest that a judge or attorney should not be deemed qualified to interview young children without first receiving needed (needed) instruction and training on the subject, no reasonable person can object to that; we must, however, be careful not to treat interviewing children as some kind of task that only a select and ludicrously educated few can perform. It’s not rocket science.
- Efficiency and Accessibility: Utilizing existing judges, commissioners, and attorneys to conduct child interview on the record will substantially reduce the financial burden on families that PGL’s and custody evaluators impose.
- Direct Advocacy: By interviewing children directly, attorneys can present the child’s voice to the court without relying on intermediaries. This preserves the child’s agency, while ensuring their own voices (not the voice of a proxy needlessly appointed without the child’s knowledge or consent) are heard, and that their rights are thus respected.
How It Would Work
The process would involve child-sensitive interviewing techniques and legal standards:
- Conducting interviews in a neutral, child-friendly environment.
- Making a sound-and-visual recording of the interviews to provide a complete, objective record.
- Presenting the children’s statements to the court as part of the official case record, ensuring their perspective is accurately represented.
Addressing Potential Concerns
Some argue that interviewing children directly may be emotionally harmful or intimidating. However, with proper training to augment their existing interrogatory skills, attorneys can conduct interviews in a way that minimizes distress over the interview process. Recording the interview also reduces the need for children to repeat their stories, further protecting their well-being.
Conclusion
Replacing PGALs and custody evaluators with judge/commissioner and attorney interviews of children on the record would promote transparency, reduce costs, and ensure the child’s voice is accurately heard. This approach respects the child’s rights, enhances accountability, and strengthens the integrity of the custody process. Both courts and the attorneys involved in child custody dispute cases should embrace this proposal as a step toward fairer, less expensive, more expeditious, more evidentially sound, and more overall effective family law proceedings.
Utah Family Law, LC | divorceutah.com | 801-466-9277
