This post is the third in a four-part series examining Utah courts’ reliance on guardians ad litem (GALs), private guardians ad litem (PGALs), and custody evaluators, and the legal, procedural, and institutional implications of that reliance.
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If Blogs 1 and 2 explained why Utah courts currently rely on best-interest professionals and where that reliance breaks down legally, this post addresses the inevitable follow-up question: If not the current system, then what? The answer is neither radical nor speculative. The answer does not lie in innovation, reform, or experimentation.
Utah law already provides tools that allow courts to protect children, preserve evidentiary rigor, and retain judicial responsibility—without delegating adjudicative work to unreviewable synthesis.
The problem is not the absence of needed lawful adjudicative tools. It is that the ordinary mechanisms of judicial fact-finding are often erroneously maligned as impractical or inappropriate and are therefore underused.
The false premise of inevitability
Child custody practice in Utah often proceeds as though reliance on best-interest professionals is unavoidable. Courts are told—sometimes implicitly, sometimes explicitly—that without off-record investigation, synthesized recommendations, and interpretive summaries, child custody disputes cannot be resolved in a timely or humane way.
That premise is mistaken. It persists not because ordinary adjudicative mechanisms are unavailable, but because they have come to be viewed as impractical, insufficiently protective, or ill-suited to family cases. Familiarity with a substituted system has gradually displaced confidence in ordinary adjudication. Familiarity, however, is not a legal justification.
In camera judicial interviews—properly constrained
Utah courts have long possessed the authority to conduct in camera interviews of children. When properly limited, recorded, and focused on factual inquiry rather than outcome preference, such interviews allow courts to hear directly from children without exposing them to open-court adversarial pressure.
The key safeguards are well understood and neither novel nor onerous:
- the interview is conducted by the judge, not delegated;
- it is recorded to preserve a reviewable record;
- questioning is developmentally appropriate and non-coercive;
- counsel have a defined role, either through advance input or post-interview review.
An in camera interview conducted under these constraints does not place children “at the center of litigation.” It places the court back at the center of fact-finding.
Developmentally appropriate child examination
The notion that deposing a child is inherently harmful is unsupported by evidence and contradicted by practice in other legal contexts. The real risk lies not in testimony itself, but in poorly conducted testimony.
Utah courts already manage testimony from vulnerable witnesses by imposing limits, supervising conduct, and sanctioning misconduct. Those same tools apply in custody cases. A developmentally appropriate deposition—short, structured, recorded, and court-supervised—can preserve a child’s voice while ensuring accountability.
Even in-court testimony by children is not inherently improper, and categorical prohibitions against it are difficult to reconcile with basic evidentiary principles. Courts routinely hear testimony from vulnerable witnesses by adjusting procedure rather than excluding evidence—through judicial control of questioning, limits on scope and duration, and safeguards tailored to developmental needs. Treating child testimony as categorically off-limits substitutes assumption for case-specific judgment and deprives the court of admissible, testable evidence where no adequate substitute exists. The law requires calibration, not blanket exclusion.
Critically, recording is not optional. Without a record, neither the court nor the parties can evaluate what was said, how questions were framed, or whether responses were shaped by suggestion. Recording does not inhibit truthfulness; it enables verification and accountability.
Expert testimony that satisfies Rule 702
Nothing in this series suggests that expert insight has no place in custody adjudication. To the contrary, expert testimony is most valuable when it is constrained by evidentiary standards rather than exempted from them.
Utah Rule of Evidence 702 provides the governing framework. Experts may offer opinions when those opinions are grounded in sufficient data, derived from reliable methods, and transparently applied.
Experts may testify about child development, trauma, attachment, and family dynamics without opining on ultimate custody outcomes or substituting judgment for the court. What Rule 702 does not permit is substitution—expert conclusions standing in for judicial fact-finding without evidentiary validation.
When expert testimony is confined to its proper scope and subjected to evidentiary validation, it assists judicial decision-making rather than displacing it.
Recorded interviews and disclosed source material
If information is important enough to influence a child custody determination, it is important enough to be preserved. Recorded interviews—of children, parents, or collateral sources—allow courts to assess tone, context, and questioning directly rather than through filtered summaries.
Disclosure of source material is equally essential. A synthesis that cannot be traced back to identifiable components cannot be tested. Transparency is not a burden; it is a prerequisite to reliability.
Judicial responsibility, not delegated judgment
What unites these mechanisms is not novelty but judicial responsibility. Each keeps adjudicative authority with the court. Each permits evidence to be examined, challenged, and reviewed. Each produces a record capable of supporting findings and appellate review.
None of these mechanisms promises perfect outcomes. Custody cases are difficult, and no process eliminates judgment or discretion. But they preserve the distinction between assisting the court and standing in for it.
Transparency as a quality filter
A recurring theme in this series is that opacity preserves poor practice, while transparency filters it out. Recording, disclosure, and adversarial testing do not guarantee excellence—but they make mediocrity visible and misconduct unsustainable.
When processes are reviewable, quality improves. When they are insulated, it does not.
Returning adjudication to the court
The choice facing Utah courts is not between efficiency and rigor, or between child protection and lawful process. The law already accommodates both. The real choice is whether custody determinations will continue to rest on unreviewable synthesis, or whether courts will reclaim the fact-finding role that adjudication requires.
The final post in this series examines why that debate is so often avoided—and why meaningful scrutiny of current practices remains the exception rather than the norm.
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