If Utah’s domestic-relations legal system is serious about accuracy, fairness, and reducing unnecessary conflict, then the system needs processes that beneficially affect how cases are litigated and how evidence is gathered. The proposals I make below are not radical. They are simple, practical steps that would make the process more disciplined, more transparent, and more tethered to reality.
Create a Master Trial Issues List Early in Every Case
After the petition, answer, and counterclaim are filed, each party submits a proposed list of trial issues to the court. These lists would identify the specific matters each party believes are genuinely in dispute. The court would then consolidate them into a master trial issues list and distribute it to both sides.
Why do this?
Clarity in negotiation.
With a master trial issues list in hand at the outset of the case, litigants and courts alike need not guess at what the other side wants, posture, or expend energy on concerns that turn out not to be issues at all. A master issues list is a shared framework. That transparency fosters more informed and realistic settlement discussions and narrows the number of issues that truly require judicial attention.
More disciplined, proportional discovery.
A defined issues list protects against the sprawling, unfocused, bad-faith discovery that practices that drive up costs and delay cases. If a discovery request falls outside the scope of the issues list, the responding party can more easily and more persuasively make a case for invoking URCP 26(b)(3)–(4) to show that the request is not relevant or proportional. This makes discovery disputes less about gamesmanship and more about whether the request meaningfully contributes to narrowing the issues and resolving real disputes.
A master issues list gives the court and the parties a tool to engage in more focused, more disciplined, and more efficient litigation.
This is not innovation for innovation’s sake. It is a straightforward method for aligning the process with its goals.
Conduct Early, Mandatory, On-the-Record Judicial Interviews of Children When Custody Is Disputed
Add a requirement for early judicial interviews of children whenever custody or parent-time is contested. Make it part of the Utah Rule of Civil Procedure 109 automatic domestic relations injunction to provide:
· For children age 10 or older, the interview should occur automatically within 14 days after the deadline for answering the petition.
· For children younger than 10 years of age, either party may request an interview, and the presumption should favor granting it unless the child clearly lacks the capacity to converse intelligently.
To be credible, these interviews must follow consistent procedures:
- Held in camera, on the record, by sound-and-visual recording.
- Parties may submit proposed questions for the judicial interview in advance of the interview; the court may use or modify them and may ask additional questions consistent with the Utah Rules of Evidence.
- Parties and counsel may monitor the interview remotely in real time, solely as observers. They may also make their own recording of the interview.
- Both sides receive the court’s unredacted official recording of the judicial interview for review.
Why do this?
This reform addresses a longstanding flaw in Utah custody litigation: the system all but entirely avoids hearing directly from the children whose lives are being shaped by these decisions. That delay creates time and opportunity for undue influence and other machinations by one parent or both parents. An early judicial child interview doesn’t eliminate those risks, but it significantly reduces them by gathering relevant, unadulterated input from the children sooner than later, before the litigation process manipulates narratives and incentives.
These interviews also increase transparency. Instead of relying on secondhand interpretations filtered through evaluators, P/GALs, therapists, or attorneys, the court gains direct insight. That reduces dispute over what the child supposedly said and limits opportunities for adults to mischaracterize the child’s views.
Addressing the Common Objections to Judicial Child Interviews
Resistance to on-the-record child interviews is often rooted in outdated assumptions rather than evidence.[1]
“Interviews traumatize children.”
There is no empirical basis for assuming that a respectful, private, judicially conducted conversation causes trauma. Courts routinely hear from children in other contexts—protective orders, juvenile cases, abuse proceedings—without presuming (or causing) harm. The risk of trauma arises not from engaging in the interview itself, but from 1) leaving critical decisions to guesswork and adult-filtered hearsay in the absence of the information the interview furnishes; and 2) misconduct of a parent or parents if that parent is upset by the child’s testimony. Last I checked, we don’t ignore or bury evidence out of fear of what the litigants may do with it.
“Children may feel anxious or uncomfortable.”
They might. Adults might too. The question isn’t whether the experience of being interviewed is entirely pleasant—it’s whether the value of obtaining unique, reliable, unfiltered information outweighs temporary discomfort. And it does. Children are not irreparably damaged by merely being questioned about what they know and experience relevant to the child custody and parent-time awards. Accept it.
“There are better ways to learn the child’s views.”
No practice currently used in Utah is more accurate than interviewing the child directly. GAL and/or custody evaluator summaries and interpretations, and therapist opinions are all secondhand at best, heavily subjective, and filtered through that subjective lens. Indirect methods rarely qualify as reliable evidence or superior evidence.
“Children are unreliable witnesses.”
Witness reliability is assessed case by case. Children can be perceptive, articulate, and insightful. They can also be confused or influenced. The court cannot determine which is true without speaking to the child. Even when a child shows signs of coaching, that fact is itself probative, as it reveals the behavior and credibility of the influencing parent(s).
“Child preferences don’t dictate the court’s custody and parent-time decisions”
A child interview does not give the child the power to choose the custody outcome, and the courts know that. The purpose of hearing from a child is not to let the child dictate terms—it is to understand the child’s experiences, needs, perceptions, concerns, and yes, his preferences, so the court can make a fully-informed decision based upon the child custody and parent-time criteria of Utah Code Title 81, Chapter 9, Part 2. Children often hold information that no adult (parent or otherwise) can fully or reliably supply (i.e., the quality of their relationships, the day-to-day dynamics in each home, the presence of conflict or pressure, and the realities that shape their well-being, to name a few). Interviews provide the factfinder with evidence, not directives, and that evidence strengthens—not undermines—the court’s independent judgment.
“Interviewing the child thrusts the child into the litigation”
Concerns about “putting the child in the middle” often ignore that the child is already in the middle of the dispute. A structured, early judicial interview is one of the few tools that actually reduces uncertainty, manipulation, and the risks of long-term harm to the child and to the evidence.
“Many/most judges have limited training, if any, in forensic child interviewing”
Are judges really “unqualified” to interview children? A recurring objection is that judges lack the “special training” necessary to interview children. This claim collapses under its own weight. Every judge in Utah is a former lawyer, and lawyers routinely examine witnesses of varying ages, capacities, and vulnerabilities without any requirement of specialized forensic-interview certification. The legal system does not require a lawyer—or a judge—to hold a separate credential to ask a witness relevant, admissible questions. Children are not an exception to this structure. The notion that only a specially trained expert (i.e., evaluator, GAL, or therapist can “properly” interview a minor child assumes that interviewing a minor is some kind of esoteric skill reserved for experts. It is not. There are no “child-whisperer” techniques, arcane interpretive methods, or hidden psychological codes that must be unlocked. What matters in a judicial interview is exactly what matters in any examination of a witness: taking care to conduct the interview with clarity, neutrality, decency, and adherence to the rules of evidence. A competent judge is fully capable of meeting those standards. Making reasonable and sensible accommodations for the circumstances inherent in interviewing a child is perfect defensible, but refusing to interview a minor child on the basis of “being unqualified to do so” is not. Judges are already permitted by their status as judges to question witnesses of any age. If a judge claims to be unqualified to do that, he/she is unqualified to be a judge.
While interviews may occasionally touch on sensitive subjects, but that risk exists in every other context where children speak with evaluators, therapists, or guardians ad litem. And while coaching and influence are genuine concerns, they actually strengthen the case for early judicial interviews: questioning the child directly is the only way to detect coaching reliably.
Likewise, the notion that GAL summaries, evaluator impressions, or therapist statements are superior to direct judicial questioning is not borne out in practice. Those methods are necessarily filtered, subjective/interpretive, dependent on the professional’s assumptions, and frankly, often pseudoscientific. They are not a substitute for firsthand evidence on the record.
“We don’t have time for that”
Convenience-based objections—such as concerns about court time or docket management—have little defensible connection to the best interests of children or the integrity of the fact-finding process.
Objections are unsupported by evidence or inconsistent with how Utah courts treat child witnesses in other proceedings
Claims that judicial interviews traumatize children lack empirical support, particularly given that courts routinely hear from children in juvenile, abuse, and protective order matters without presuming harm. Assertions that interviews “put the child in the middle” overlook the fact that custody litigation itself places the child in the middle, and that a structured, neutral inquiry can reduce ambiguity rather than increase it. Arguments that children are inherently unreliable witnesses ignore that reliability is evaluated case by case; adults are not presumed credible simply by virtue of age.
In short, only a small fraction of the objections to interviewing children rest on rational or evidence-based foundations, and none justify avoiding interviews altogether. They instead point toward the need for better, earlier, and more structured interviewing practices. When custody decisions directly affect a child’s life both now and for the rest of it, the court’s access to reliable, unfiltered information should not be optional.
A More Disciplined, Evidence-Driven Process—Without Increased Expense or Other Burdens
Utah can improve the accuracy and fairness of its domestic relations process by implementing these simple and cost-effective policies. A master issues list introduces discipline to litigation. Early judicial interviews of minor children bring transparency to, and more informed decisions in custody and parent-time decisions. These proposed reforms move the system away from assumptions and workarounds and toward important evidence that is economically and efficiently obtained without harm to anyone. Indeed, Utah parents and children deserve nothing less.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] How Rational Are the Objections to Child Interviews? Many of the common objections to interviewing children may sound plausible, or at least well-intentioned, at first, but most do not withstand basic scrutiny. When examined through the lens of evidence, logic, and actual Utah practice, only a small minority of these claims have any merit.