One of the defining peculiarities of modern Utah child custody and parent-time litigation is the judiciary’s reluctance to hear directly from the people most affected by the decision: the children.
When attorneys ask a court to interview children in chambers or allow testimony under controlled circumstances, the request is often denied. Instead, courts frequently appoint a private guardian ad litem (PGAL) or a custody evaluator to interview the children and then “speak for the children.”
This practice is so common that it is rarely questioned; it should be.
Because when a court declines to hear from children directly but instead appoints someone else to relay what the children supposedly think, feel, or want, the court has inserted an intermediary between the witness and the factfinder.
The child still speaks—just not to the judge, and not on the record.
Instead, the court hears a filtered, second-hand account of what the child allegedly said. Rarely, If ever, is the interview itself recorded verbatim. The judge therefore receives a report allegedly describing the child’s statements rather than the statements themselves.
That arrangement raises an obvious structural question: if courts exist to determine facts, then why insert layers of interpretation between the witness and the factfinder when the court could hear the witness directly?
The Basic Logic of Factfinding
Courts normally gather information from witnesses in a straightforward way.
Witnesses testify.
Judges observe them.
A verbatim record is created.
Opposing counsel may cross-examine the witness.
Appellate courts can review the record if the decision is challenged.
Those safeguards exist for a reason. When testimony is given directly, the factfinder can observe context, tone, hesitation, and nuance. Questions and answers are visible. The record preserves exactly what was said.
Utah child custody and parent-time litigation often departs from this model.
Instead of hearing from the child directly, Utah courts appoint professionals—typically PGALs or custody evaluators—to interview the child privately and then report their impressions, conclusions, and recommendations to the court.
In that arrangement, the witness still speaks, but the court hears only a second-hand account of the conversation. The court is then asked to make credibility determinations based not on the witness’s testimony, but on someone else’s description of what the witness allegedly said and “meant.” In any other branch of law, determining “intent” or “meaning” from a silent record would be considered speculative.
To put it kindly, that is an unusual structure for factfinding. The law distrusts second-hand evidence for a reason: interpretation is not testimony. Yet in child custody and parent-time disputes Utah courts often refuse to hear from the child witness at all—even when the child is willing to testify—and instead purport to rely on an intermediary’s interpretation of a private conversation. That is simply unacceptable.
The Two Justifications Courts Offer
Courts typically defend this practice with two explanations: protection and expertise. Neither explanation withstands scrutiny.
The Protection Rationale
The most common justification is that testifying in court may be psychologically harmful to children. Protecting children from unnecessary harm is a legitimate concern. No one disputes that.
But the premise collapses under even cursory examination.
If the harm lies in the act of speaking about the dispute, it does not matter to whom the child speaks. Talking to a judge, talking to a custody evaluator, talking to a PGAL, or talking to a therapist all involve the same basic act: the child describing experiences and expressing thoughts or preferences about the situation.
Changing the listener does not eliminate the conversation.
A child who describes painful family dynamics to a custody evaluator has still described those dynamics. The emotional experience of discussing the dispute does not disappear merely because the listener holds a professional credential.
The assumption that speaking to a judge is uniquely harmful therefore requires evidence. No empirical evidence supports that assumption.
Courts routinely permit children to speak about traumatic events in other legal settings. Children testify in abuse prosecutions, neglect proceedings, and other matters involving far more serious allegations and events than the typical child custody and/or parent-time dispute. In those contexts the legal system manages the process through controlled procedures—limited questioning, in camera interviews, closed courtrooms, recorded interviews, and other safeguards. The premise is not that children must never speak or that their words must never be recorded. It is that the probative value of their testimony can outweigh the potential harm when the process is carefully managed.
Custody litigation is one of the few areas in which the system often moves in the opposite direction: not toward controlled testimony, but toward eliminating record testimony altogether.
If speaking about family conflict were inherently harmful, it would be difficult to explain why courts routinely permit children to discuss those same issues with evaluators, therapists, and guardians ad litem—often repeatedly and sometimes in far less structured settings than a hearing, deposition, or in camera interview.
The “protection” rationale therefore does not eliminate the underlying experience. It simply relocates it. The child still speaks. The only difference is that the court no longer hears the child’s words directly and fully.
The Coaching and Pressure Problem
A more serious justification for using intermediaries is not psychological harm alone, but the risk of distortion. Courts often worry that children may be coached, influenced, or subtly pressured by one or both parents. A child may tell a judge what the child believes the judge wants to hear. A child may protect one parent, fear disappointing another, or repeat narratives that have been reinforced over time.
Those concerns are real. But they do not support the elimination of direct testimony. They underscore the need for transparency.
The risk of coaching does not disappear when the interviewer changes. A child who has been influenced before the interview remains influenced whether the listener is a judge, a custody evaluator, or a guardian ad litem. In fact, the risk may be harder to detect when the conversation is unrecorded. Without a verbatim record, neither the court nor opposing counsel can evaluate how questions were framed, whether leading language was used, or how the child’s responses evolved during the interview.
A recorded, controlled interview—whether conducted by the court or a qualified professional—does not eliminate distortion. But it allows the court to see it. Patterns of suggestion, hesitation, inconsistency, or rehearsed language are often visible only when the actual exchange is preserved. A summarized account removes precisely the information needed to evaluate reliability.
If the concern is that children may be influenced, the solution is not to replace testimony with interpretation. It is to preserve the interaction in a form that allows the court to assess how the child’s statements were elicited and expressed. Opacity does not protect against distortion. It conceals it.
The Expertise Rationale
Courts routinely hear testimony from children in other settings. Children testify in abuse prosecutions, neglect proceedings, civil trials, and criminal cases. Judges and lawyers routinely question child witnesses.
The legal system has never treated child testimony as something that only mental-health professionals may elicit.
Family law is the outlier—and not because children are fundamentally different in custody and parent-time disputes, but because the comparison is framed differently. The choice is often presented as one between a trained forensic interviewer and an untrained judge. In practice, however, the comparison is rarely so clean.
Guardians ad litem—the most common interviewers of children—are lawyers, not psychologists. Custody evaluators, even when clinically trained, frequently conduct interviews that resemble ordinary conversations rather than structured forensic examinations.
The claim of specialized expertise also borrows heavily from contexts in which it is more justified, such as child sexual abuse investigations. Those settings involve different risks, different evidentiary goals, and different interviewing protocols. Importing that framework wholesale into custody and parent-time disputes obscures the fact that most custody interviews are not conducted under those conditions.
Even where “forensic interviewing” is invoked, the expertise is often less robust than the label suggests. The training cited in support of this practice typically consists of limited continuing education rather than extensive clinical specialization, and courts rarely examine whether the claimed expertise actually exists or was meaningfully applied.
Yet courts are frequently asked to rely on an interviewer’s characterization of what the child allegedly said without any preserved record of the questions asked (and not asked) or the answers given (and not given). That is not a minor procedural gap. It is a structural shift in how evidence is presented. The child’s statements are filtered through memory, interpretation, and selection. What the court receives is not the testimony itself, but a subjective summary of alleged testimony.
In most other contexts, such a substitution would be treated with caution at best. When expert witnesses testify, court rules require transparency. The expert must disclose the methods used, the information relied upon, and the reasoning that supports the conclusions. The opposing party may cross-examine the expert about the wording of questions, the context of responses, and the reliability of the process.
But when similar interviews occur in child custody and parent-time disputes, those safeguards often disappear. The conversation with the child is rarely, if ever, recorded. The precise questions asked are seldom preserved. The child’s answers are typically summarized rather than presented verbatim. The factfinder is left to evaluate not the child’s statements, but the intermediary’s account of them.
If expertise truly justifies replacing testimony with interviews, it would seem to justify preserving the interview record, not dispensing with it. A system that invokes expertise to mediate a child’s statements, while declining to preserve those statements in their original form, relies less on expertise than on opacity.
The Structural Problems Created by Intermediaries
When courts rely on intermediaries to convey children’s statements and “intent and desires,”[1] several structural problems follow.
Interpretation Replaces Testimony
Instead of hearing the child’s words, the court receives subjective summaries, impressions, and interpretations.
Guardians ad litem and custody evaluators must decide which statements matter, how to describe them, and what conclusions to draw. Each step requires judgment. The child’s statements are filtered through the intermediary’s memory and interpretation.
That process does more than summarize a conversation. It transfers a portion of the court’s factfinding authority to the intermediary. Decisions about which statements are relevant, what context matters, and what the statements signify are judgments ordinarily reserved to the judge. When those judgments are made first by an intermediary, the court receives not the witness’s testimony but instead receives literally a pre-judicial interpretation of it.
The result is a record largely devoid of direct evidence. The child’s own words—the primary evidence of what the child experienced or believes—are rarely preserved verbatim (indeed, the idea of doing so is anathema in all but a few Utah courts dealing with child custody and parent-time disputes). The court receives evidence—but not the primary evidence. It receives derivative evidence. The record consists of descriptions of the child’s alleged statements filtered through another person’s recollection and analysis.
The factfinder is therefore asked to evaluate credibility and meaning without access to the witness’s actual, complete testimony.
This is contrary to fundamental factfinding. The primary evidence must be presented before the interpretation follows. In child custody and parent-time practice, the interpretation arrives, but the underlying testimony never does.
The Record Disappears (if It Ever Existed in the First Place)
In the overwhelming majority of Utah custody disputes, interviews between children and evaluators are not recorded verbatim.[2] The court receives a written report summarizing the alleged conversation rather than verbatim recording of it or a verbatim transcript with an accompanying verbatim recording.
The distinction is substantive: a verbatim record preserves the testimony as given; a summary preserves only an intervening, filtered interpretation of that testimony.
When the underlying conversation is not fully preserved, neither the trial court nor an appellate court can review what the child actually said (and did not say). The evidentiary trail stops with the intermediary.
Credibility Cannot Be Tested
Direct testimony allows the factfinder to observe the witness and allows opposing counsel to test the witness’s statements through cross-examination.
When the child’s statements are filtered through an intermediary, both safeguards disappear. The court cannot observe the witness directly, and the witness’s statements cannot be examined through adversarial questioning. The court is no longer evaluating the witness. It is evaluating the intermediary.
The Narrator Problem
Intermediaries are not messengers. They do not transmit the child’s words; they construct the account the court ultimately receives. What is heard, how it is framed, and what it is taken to mean are all shaped before the court ever sees it.
That shaping is not uniform. Two guardians ad litem—or two evaluators—could interview the same child under the same conditions and produce materially different reports. Each would select different statements, emphasize different themes, and assign different weight or meaning to what was said.
The consequence is structural, not incidental. The court is not evaluating the child’s account in its original form. It is evaluating an interpreted version of that account. The intermediary is therefore not a neutral conduit, but a decision-shaping interpreter whose characterization of the child’s statements may influence the outcome of the case.
The Demeanor Paradox
Courts emphasize the importance of observing witness demeanor when assessing credibility. Tone, hesitation, confidence, and body language are treated as meaningful indicators of truthfulness.
Yet when the witness is a child, those tools are often set aside. The court does not observe the witness. It hears or reads a summary from someone who claims to have observed the witness.
If demeanor evidence has value when adults testify, it is difficult to explain why that value diminishes when the witness is a child. The difference is not in the importance of demeanor, but in the court’s access to it.
The Court’s Position: Real Constraints, Imperfect Tools
Before turning to the broader consequences of this structure, it is worth acknowledging the position courts are in.
Trial judges are working under real constraints. Dockets are crowded. Hearings are limited in time. Child custody disputes are often high-conflict, factually dense, and emotionally charged. Judges are asked to make consequential decisions quickly, often on incomplete information.
There are also legitimate concerns about involving children directly. Judges are wary of placing children in the middle of parental conflict. They are cautious about creating pressure, inviting performative answers, or exposing children to adversarial dynamics they are not equipped to navigate.
Against that backdrop, intermediaries offer an appealing solution.
But the same features that make intermediary reports efficient—structure, coherence, and interpretation—also create distance from the underlying facts. The court receives a finished product rather than the raw interaction. The ambiguity, hesitation, and context that often matter most are filtered out before the court ever sees them.
The issue is not that courts rely on professionals. It is that reliance has, in many cases, needlessly displaced the court’s direct engagement with the evidence itself.
Efficiency is a legitimate concern. So is protection. But neither requires the elimination of a verifiable record of what the child actually said. Preserving the testimony of one of the most important witnesses in the case is not an undue burden. It is a basic requirement of reliable factfinding.
Systemic Consequences
These structural choices affect custody litigation in broader ways.
The Status-Quo Effect
Temporary custody orders are often entered on a compressed timeline, based on limited evidence—affidavits, competing allegations, and a necessarily cursory review of claims. They are not intended to be final determinations. They are provisional.
In practice, however, they rarely remain so.
Once entered, temporary arrangements quickly take on gravitational force. Courts are understandably reluctant to disrupt a structure that appears to be functioning, particularly where a child has adapted to it. Stability becomes the guiding concern.
But that stability may rest on an incomplete or even false foundation. If the court has not heard directly from the child at the outset, the child’s perspective is absent at the very moment when the initial framework is established. What begins as a tentative, expedited decision—often heavy on allegations and light on verified facts—can, over time, harden into the baseline against which all future changes are measured.
The longer that status quo persists, the more difficult it becomes to alter, regardless of how it was formed.
The Appellate Deference Problem
Appellate courts give great deference to trial judges on credibility determinations because trial judges personally observed the witnesses. That principle makes sense when the judge actually heard the witnesses.
But in Utah child custody and parent-time disputes, the witness whose perspective may (and likely will) matter most—the child—is never seen or heard by the court at all. Instead, the trial court relies on an intermediary’s description and interpretation of the child’s statements.
Yet appellate courts will still defer to the trial court’s credibility determinations, even though the trial judge never observed the underlying witness.
The credibility assessment becomes indirect at every level of review.
Institutional Convenience
There is also a practical reality that receives less discussion: hearing directly from children makes child custody and parent-time cases harder to decide.
Children sometimes express mixed loyalties. They may contradict assumptions adults have made about them. Their perspectives can be messy, inconsistent, or emotionally complex.
Once those statements are preserved in a recording or transcript, the court must confront them as they are. The ambiguity cannot be smoothed over. The contradictions cannot be ignored. The record fixes the problem in place.
Intermediary reports change that. The child’s perspective reaches the court already filtered, organized, and interpreted. What was messy becomes coherent. What was uncertain becomes framed. That structure makes cases easier to manage.
That does not just simplify the case; it creates distance from the facts, obscuring them. The judge is no longer relying on the child’s actual words, but on someone else’s version of them.
That distance and obscurity provide a form of plausible deniability. If the account is incomplete or wrong, the court can point to the intermediary: this is what I was given; this is what I had to rely on.
When the system prioritizes the comfort of a coherent report over the transparency of raw testimony, it isn’t just seeking efficiency—it is committing a form of evidentiary avoidance. Choosing the filtered summary over the difficult reality is not a judicial best practice; it is an institutional copout that buys procedural speed at the high cost of factual accuracy.
While this “pre-digested” evidence serves the court’s desire for a clean record, it fundamentally dehumanizes the subject of the litigation. By prioritizing the convenience of the intermediary’s summary, the legal system inadvertently silences the very person it is tasked to protect. This leads to a profound irony: the child, whose future is the entire point of the proceeding, becomes the most marginalized stakeholder in the room.
The Marginalized Stakeholder
Children in custody disputes are the people whose lives will be most directly shaped by the court’s decision.
Their homes may change. Their routines may change. Their daily relationships with parents will change.
Yet paradoxically, children are often the only stakeholders whose voices the court declines to hear directly. Parents, experts, friends, and relatives are granted the dignity of direct testimony and a verbatim record. The child, however, becomes the only witness heard—if at all—through a proxy.
In any other context, deciding a person’s interests without hearing directly from that person would raise concern. In custody disputes, it is routine. What makes that so problematic is not just optics; it is what it does to the integrity of the decision itself.
If it would trouble us elsewhere to decide someone’s interests without hearing from him or her directly, it should trouble us here even more—not less—because the consequences are intimate, durable, and imposed on a child who did not choose the forum.
The Factfinder’s Responsibility
Fact-finding is the court’s responsibility.
Courts may appoint professionals to assist in that task. Expert input can be valuable. But assistance is not substitution.
When a court declines to hear directly from the child while relying on reports of what the child supposedly said, it has not avoided testimony. It has replaced firsthand evidence with secondhand interpretation. The gathering and framing of the child’s statements have been delegated to someone else.
If the court chooses not to hear from the child, that choice warrants explanation. And if the justification is protection, it should be demonstrated, not presumed. The question is not whether children should be shielded from harm. The question is whether speaking to a judge under controlled, transparent conditions is more harmful than speaking to an intermediary in an unrecorded, unreviewable setting. That premise is often asserted. It is rarely examined.
If the child’s voice matters enough to influence the outcome of the case, it is important enough to be heard in its original form. If it is not heard directly, it is fair to question why it is being relied upon at all.
CONCLUSION
A child’s voice can affect the outcome of the case. It is important enough to be preserved in its original form.
If the judiciary is to remain the ultimate arbiter of a child’s best interests, it must stop outsourcing its eyes and ears to intermediaries who operate in the dark.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] See Utah Code § 78A-2-705(13):
(13)
(a) The private attorney guardian ad litem shall represent the best interests of a minor.
(b) If the minor’s intent and desires differ from the private attorney guardian ad litem’s determination of the minor’s best interests, the private attorney guardian ad litem shall communicate to the court the minor’s intent and desires and the private attorney guardian ad litem’s determination of the minor’s best interests.
(c) A difference between the minor’s intent and desires and the private attorney guardian ad litem’s determination of best interests is not sufficient to create a conflict of interest.
(d) The private attorney guardian ad litem shall disclose the intent and desires of the minor unless the minor:
(i) instructs the private attorney guardian ad litem to not disclose the minor’s intent and desires; or
(ii) has not expressed an intent and desire.
[2] If a custody evaluator has ever recorded his/her interviews with the children for the record, I have yet to experience personally (even though I have moved for the interviews to be recorded) and know of no case in which that has been true.