Utah courts frequently exclude child testimony in custody and parent-time proceedings on the asserted ground that doing so protects children from emotional harm. That premise is mistaken. Categorical exclusion is not authorized by Utah law, is incompatible with the evidentiary framework that governs fact-finding in domestic-relations cases, but is common, even routine.
This essay advances a straightforward proposition: Utah’s existing evidentiary rules already provide courts with practical, developmentally appropriate means to receive child testimony while mitigating any legitimate risk. Utah Rules of Evidence 403 and 611 do not permit blanket bans on child witnesses; they require individualized balancing and active judicial control of the mode of questioning. Where courts preclude child testimony without performing that analysis or employing available safeguards, they do not exercise protective discretion, they bypass the rules. When that bypass is justified by pretextual appeals to “child protection,” the failure is not merely doctrinal; it is unethical, because it trades disciplined adjudication for institutional convenience while mislabeling the result as compassion.
A system that purports to decide a child’s “best interest” while systematically excluding the child’s firsthand accounts of his/her experiences, observations, feelings, desires, and opinions substitutes institutional convenience for legal necessity. The tools for prudently obtaining a true, objective record of child testimony already exist. Courts simply decline to use them.
The False Binary: “Trauma or Silence”
Opponents of child testimony often frame the issue as an inescapable choice: either subject the child to full adversarial examination, with its assumed (not self-evident) trauma or silence the child entirely. This binary collapses upon inspection of Utah Rule of Evidence 611(a), which requires courts to “exercise reasonable control over the mode and order of interrogating witnesses” to ensure effective truth-seeking while protecting the witness from harassment or undue embarrassment.
The rule itself rejects the premise that protection requires silence. It anticipates risk and supplies mechanisms to manage it. When courts default to categorical exclusion, they are not applying Rule 611(a); they are bypassing it.
Rule 611(a): A Mandate to Tailor, Not Eliminate, Child Testimony
Textual Obligations
Rule 611(a) imposes three affirmative duties on the court: (1) make procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. These are obligations, not optional tools, and they apply to all witnesses, including children.
Practical Implementation Using Existing Tools
Rule 611(a) authorizes a wide range of low-cost, readily available means of recording of the child testimony process to preserve an appellate record of testimony while mitigating risk to the witness, including but not limited to:
- in camera or judge-led examinations;
- use of developmentally appropriate questions that are formulated by counsel (or the parties, if proceeding pro se) and pre-approved by the judge;
- simplified phrasing and pacing;
- the presence of a person to provide emotional support (“security blanket”) for the child witness during questioning;
- segmented testimony with breaks..
None of these measures requires new statutes, novel or prohibitive cost, or extraordinary effort. They are routine exercises of judicial control expressly contemplated by the rule.
Systematic Nonuse and Its Consequences
Courts frequently decline to employ Rule 611(a)’s safeguards and instead prohibit child testimony outright. In many cases, courts invoke generalized (often utterly obfuscatory) concerns about “trauma” while making no individualized, particularized underlying factual findings and no attempt to tailor the process with an eye toward bringing testimony about, preferring instead to invent reasons to prevent it. The result is not protection through management, but exclusion through moralistic avoidance.
Rule 403: The Required Balancing Courts Often Omit
The Governing Standard
Rule 403 permits exclusion of relevant evidence only if its probative value is substantially outweighed by specific dangers, including unfair prejudice, confusion, misleading the factfinder, undue delay, waste of time, or needless cumulative presentation. The standard is intentionally demanding and establishes a presumption of admissibility.
The Exceptionally Probative Value of Child Testimony
Utah Code §§ 81-9-204 and 81-9-305 require courts to assess factors that children uniquely experience firsthand, including exposure to abuse, endangerment, or neglect, daily caregiving realities, household dynamics, individual parental and co-parenting behavior, and the child’s own desires and concerns. These are lived facts, not abstractions, and children are, by their unique status as the children, certainly unique percipient witnesses to them on a continuous basis.
Because these facts (and the statutory factors that consider them) lie at the core of custody determinations, child testimony is frequently not merely relevant but indispensably probative.[1] Excluding it therefore requires proof—case-specific and supported—that identified dangers substantially outweigh the probative value of child testimony.
The Illegality of Blanket Exclusion
Courts often exclude child testimony without conducting the individualized Rule 403 analysis the rule requires. Generalized assertions of potential emotional strain or speculative invocations of trauma do not satisfy the rule’s standard. Replacing balancing with presumption converts a rule of admissibility into a practice of categorical suppression, contrary to the text and purpose of Rule 403.[2]
The Evidentiary Substitution Problem and Appellate Consequences
When child testimony is excluded, courts commonly accept substitutes, all of which are inferior, and components of which are counterfeit: summaries from private guardians ad litem, custody evaluators, or therapists. These accounts are unsworn/unaffirmed, unrecorded, and not subject to cross-examination. Impeachment under Rule 806 is thus often impossible.
This substitution has predictable consequences. Trial courts decide disputed facts without testable evidence from the primary witness.
Courts that routinely prohibit child testimony will instead routinely treat GAL or evaluator assertions as functional substitutes for evidence, despite knowing (or being obligated to know) that such assertions are neither sworn testimony nor admissible proof, that these illicit stand-ins for real evidence cannot be tested through cross-examination. Appellate courts are left with no meaningful record to review. Findings become insulated from scrutiny not because they are correct, but because the evidentiary basis necessary to evaluate them was never created.
The Trauma Narrative and the Absence of Rule-Based Analysis
Genuine concerns about trauma warrant careful attention. Under Utah’s evidentiary framework, such concerns must be addressed through evidence, individualized findings, and application of Rules 403 and 611(a). In practice, trauma is often invoked as a categorical premise that forecloses analysis rather than as a conclusion reached through it. In this posture, “trauma” functions not as an empirical claim (it can’t) but as a convenient pretext, moral cudgel invoked to deter scrutiny, halt inquiry, and cast anyone who insists on real testimonial evidence as cruel, dangerous, obtuse, or otherwise unfit to be heard.
Even assuming some inherent risk of emotional strain or distress in testifying, the rules presume admissibility with safeguards. They do not authorize courts to treat risk as self-proving or to bypass the balancing and tailoring the rules require.
Institutional Incentives and Persistent Silence
The persistence of categorical exclusion is better explained by institutional incentives than by legal doctrine. Prohibiting child testimony reduces time and complexity while avoiding reputational risk—both the appearance of indifference to vulnerable children and the exposure of inadequate reasoning—by foreclosing the development of a reviewable record. These incentives align decisional convenience with outcome control while insulating trial-level determinations from appellate oversight.
Such alignment of institutional incentives does not excuse procedural noncompliance or cure due-process defects; it instead emphasizes why the evidentiary framework, and the principles it embodies, must be enforced as written.
Applying the Rules We Already Have
The remedy is clear, readily implementable, imposes no financial burdens, and entirely congruent with existing law:
- conduct individualized Rule 403 balancing;
- employ Rule 611(a) to tailor procedures in developmentally appropriate ways;
- foster creation of a record sufficient for appellate review; and
- Recognize and enforce the principle that hearsay or unsworn statements cannot serve as evidentiary stand-ins for direct proof.
- permit direct testimony whenever conscientiously feasible.
The remedy is clear, readily implementable, imposes no undue financial burden, and is entirely congruent with existing law:
- conduct individualized Rule 403 balancing;
- employ Rule 611(a) to tailor procedures for child witnesses in developmentally appropriate ways;
- foster the creation of a record sufficient for appellate review;
- recognize and enforce the principle that hearsay or unsworn statements cannot serve as evidentiary stand-ins for direct proof; and
- permit direct testimony whenever conscientiously feasible.
Together, these steps realign custody adjudication with its core commitments to truth-finding, due process, and accountable decision-making.
The tools already exist. It is past time to use them. Failure to do so—immediately—needlessly invites error and prevents meaningful review.
No statutory amendments are required. No doctrinal innovation is needed. Fidelity to existing rules suffices.
Accurate fact-finding is the predicate of child protection. A practice that predictably, and not merely inadvertently, degrades evidentiary reliability, substitutes untestable hearsay for firsthand testimony, produces less—and less probative—evidence, and frustrates appellate review cannot reasonably be defended as protective. Utah’s evidentiary rules anticipate risk and supply tools to manage it. Whether courts silence child witnesses outright or suppress their testimony in any measure, they do not protect children; they circumvent the framework designed to ensure fairness and accuracy in determining children’s best interests.
Normative and Ethical Implications
The foregoing analysis demonstrates more than technical noncompliance with evidentiary rules. It exposes an ethical failure embedded in what has become a routine ultra vires practice.
When courts possess clear legal authority to receive child testimony safely, decline to employ that authority, and instead rely on pretextual invocations of “trauma” untethered to evidence or rule-based analysis, the resulting silence is not morally neutral. It reflects an abdication of the judicial duty to engage in disciplined factfinding. Avoidance of effort, discomfort, or accountability does not become virtue merely because it is couched in the language of protection.
Equally troubling is the substitution of unsworn, unrecorded, and non-cross-examinable narratives for a child’s own testimony. This practice misrepresents itself as child-centered while functionally prioritizing institutional convenience and narrative control over accuracy, transparency, and due process. Calling such substitution “protective” is disingenuous. A system that knowingly prefers unverifiable summaries to testable evidence is not safeguarding children; it is insulating decision-makers from scrutiny.
Judges are not ethically permitted to decline difficult work simply because it is difficult. The moral authority of custody adjudication rests on the integrity of the process implemented to decide children’s futures. When courts silence the very witnesses whose experiences the law deems central, they erode that authority and compromise public confidence in the justice system.
Stated plainly: a practice that systematically excludes children’s voices despite lawful, humane alternatives is not an act of compassion. It is a knowing failure of professional responsibility. The ethical course is the harder one—to apply the rules faithfully, to hear the evidence responsibly, and to accept the accountability that genuine adjudication requires.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] A related justification for exclusion is often advanced and merits brief discussion: assertions that children are categorically unreliable witnesses. That claim also does not reflect a genuine evidentiary concern so much as yet another pretext for avoiding testimony, given that the law already provides established mechanisms to address reliability—including competency determinations, tailored procedures, and credibility assessment on a case-specific basis—rather than wholesale exclusion of an entire class of witnesses. Invoking unreliability to justify categorical exclusion replaces individualized evidentiary adjudication with preemptive silencing.
[2] Utah Code § 81-9-204(5)(a) is sometimes misread as barring child testimony absent extraordinary circumstances. It does not. The provision limits a parent’s power to require a child to testify as a default matter and requires case-specific findings before testimony is compelled; it does not establish a presumption against admissibility, nor does it authorize categorical exclusion or substitution of hearsay summaries for firsthand testimony. Read in context, the statute regulates compulsion and method—not evidentiary value or truth-finding.
The “no other reasonable method” clause is frequently invoked as though it authorizes an alternate route to testimony. It does not, because no such route exists. It can’t; if the child does not testify, there is no testimony to be presented. What is instead offered is not testimony by another means, but an illusory–and thus impermissible—proxy for it. A secondhand report of what the child allegedly said is hearsay standing in for firsthand evidence. A recommendation is argument, not evidence. Reading § 81-9-204(5)(a) otherwise cynically converts what was intended as a narrow safeguard against reflexive compulsion into an evidentiary sleight of hand.