I. The System’s Logic
When courts appoint custody evaluators and/or private guardians ad litem (PLALs), the justification is usually straightforward: The judge does not want children to testify.
So instead, the court appoints a “neutral professional” to speak with the child privately and report back.
The theory is that a child will feel more comfortable speaking with such a person in a quiet office than with a judge in a courtroom. Moreover, the custody evaluator or PGAL is specially trained to question children on the subject.
It sounds humane. It sounds thoughtful. But it rests on an assumption that doesn’t withstand scrutiny.
II. The White-Coat Fallacy
The system assumes that children are intimidated primarily by who is asking the questions, and that the distress of testifying lies in the identity of the interviewer, rather than from the substance of the inquiry itself. So the thinking goes: change the person conducting the interview, and you reduce the adverse effects of the interview on the child.
Adults tend to focus on the identity of the interviewer—judges, lawyers, or experts—because those roles carry meaning for adults. Children are focused on something else entirely: the fact that they are being asked questions that matter.
III. The Stressor Is the Question, Not the Questioner
Imagine being a child sitting across from a stranger who asks questions like these:
- Tell me what a normal day is like at your mom’s/dad’s house?
- What do you like most about spending time with your mom/dad?
- How does your mom/dad handle rules and discipline?
- Do your parents ever argue with each other? What happens when they do?
- How do you feel about the current schedule?
- If anything could change about the schedule, what would you want?
Children quickly understand what is going on. This is not casual conversation. They are being asked questions that may affect where they will live and how often they will see each parent.
At that point, the identity of the interviewer matters much less than the stakes of the conversation. Changing the face across the table does not change the burden being placed on the child.
The distress comes from the situation itself: someone is asking questions that could have serious consequences.
Someone is asking them to describe events, evaluate relationships, and provide information that may affect the outcome of the child custody and parent-time disputes.
The setting may be softer, but the impact of the questions—and the weight of the child’s answers—does not change.
Children are perceptive. They understand why the interview is happening. They understand that their answers matter.
IV. The Illusion of Neutrality
Another common justification is that PGALs and/or custody evaluators are neutral third parties.
Assumed neutrality of the interviewer does not neutralize the child’s position in the conflict.
Children worry about hurting one parent’s feelings. They fear that honesty will cause conflict. They may try to give answers they believe adults want to hear.
These pressures arise from loyalty conflicts and family dynamics, not from how “neutral” the interviewer is.
What is presented as a more “child-friendly” process is often just a different delivery system for the same pressure.
V. The Real Question the System Avoids
If the goal is truly to spare children from being drawn into litigation any more than necessary, the real question is not who asks the questions.
In a child custody and parent-time dispute, the child is not a peripheral figure. The child is the primary stakeholder, the person whose daily life, relationships, and stability are being decided. The child is also one of the most percipient witnesses to the facts that matter: how each parent behaves in the home, how conflict manifests, how rules are enforced, and how the child experiences each environment.
Utah law mandates that courts make findings about these very issues when deciding custody and parent-time. But when those findings are made without directly engaging the child’s account, instead relying on filtered summaries, the court is not avoiding involvement. It is outsourcing it.
There are cases where these questions are not easy to address. There are cases where care and restraint are necessary. But difficulty is not a justification for distancing the factfinder from the source.
If the court is to perform its factfinding role competently, the child’s evidence must be obtained. The child is already involved. The only question is whether the court will engage that evidence directly—or accept it secondhand.
VI. The Procedural Comfort Problem
Custody evaluations and/or PGAL appointments can create a sense of procedural comfort for the adults involved.
Judges avoid putting children on the stand.
Lawyers avoid questioning them directly.
Parents believe that a “neutral professional” is providing a valuable service.
Courts and lawyers reassure uninformed parents that involving a professional both protects the child and guarantees accuracy. It’s described to sound safer, to feel more reliable, to appear more humane.
But what is actually happening is simpler.
The difficult work is being delegated—and with it, diluted.
Once delegated, it becomes easier for everyone else to stop looking too closely at how that work is done. And in Utah, PGALs and custody evaluators do not record child interviews, making it impossible to verify what actually occurred.
If the questions are asked, the child is still placed in the same position: describing, comparing, and, whether explicitly or not, choosing. Changing the delivery system does not necessarily change the effects on the children.
The only difference is that the court receives a report of what the child allegedly said and “meant” instead of the interaction itself.
Procedural comfort is achieved. But it is achieved by creating distance between the decision-maker and the evidence.
And distance, in a factfinding process, is dilution, not a neutral trade.
VII. A Harder Conversation
None of this means that a custody evaluator or PGAL appointment is necessarily a bad call. Competent, conscientious professionals can contribute useful information. But courts should be honest about what is actually happening when they do.
When children are interviewed in a child custody dispute, they are not being spared from the conflict. They cannot be.
The distress does not come primarily from the setting, the office, or the credentials of the person asking the questions.
It comes from the substance of what the children are being asked to do. They are being asked to describe, to compare, and—implicitly or explicitly—to take positions about the two people they depend on most. No change in interviewer eliminates that burden. It only changes who carries it into the record.
Advocates of appointing a PGAL and/or custody evaluator often say this protects children from “testifying.” But the child is still questioned (or allegedly is); the questioning (assuming it occurred at all) is simply never part of the record. What the system calls “protection” is the removal of both the questions and the answers from the court’s view.
That is not protection for the child. It is protection for the court—protection from having to confront the child’s evidence directly.
Utah Family Law, LC | divorceutah.com | 801-466-9277