In a surprising number of child custody disputes, courts make major decisions based heavily on conversations nobody else gets to see or hear.
A custody evaluator interviews the child privately. No recording is made. No transcript exists. No attorney is present. No cross-examination occurs. The evaluator later writes a report summarizing what the child supposedly said and what the evaluator thinks it means.
Then the court is often asked to rely heavily on it.
That should make people uncomfortable.
The issue is not whether custody evaluators are honest people. Some are careful and conscientious. Some are not. That is true in every profession.
The problem is bigger than that.
The problem is that courts are often being asked to accept somebody else’s interpretation of a child interview without any meaningful way to independently verify what actually happened inside the room.
What questions were asked?
Were they open-ended questions or leading ones?
Did the child volunteer information spontaneously, or was the information gradually pulled out through repeated prompting?
Did the evaluator omit context?
Did the child hesitate? Change answers? Seem confused? Seem eager to please?
Nobody knows because there is usually no record.
And yet these interviews can substantially influence child custody outcomes.
That is a serious evidentiary problem.
Custody Evaluators Are Not Permitted to Determine Credibility
Credibility determinations belong to courts. That is not some technicality. It is a foundational principle of the judicial system.
Judges determine credibility because courts are supposed to evaluate testimony openly, on the record, with procedural safeguards in place. Witnesses testify under oath. Lawyers cross-examine them. The factfinder observes demeanor, hesitation, inconsistency, memory failures, evasiveness, and context.
That process is imperfect, but at least it is transparent. Custody evaluations often are not.
To be fair, evaluators inevitably make observations that touch on credibility. They may observe that a child appeared rehearsed, emotionally flat, unusually fearful, evasive, inconsistent, or developmentally atypical in speech patterns. Fine. Those are observations. But many reports go further than that. Much further.
Some evaluators effectively tell the court the child was truthful, that allegations were “validated,” or that one parent’s account was credible and the other’s was not. That is where things start going off the rails.
Because once the interview itself is unrecorded, the court is no longer really evaluating the child’s credibility. The court is evaluating the evaluator’s interpretation of the child’s credibility. Those are not the same thing.
The “Black Box” Problem
A surprising amount of family court decision-making occurs inside what is effectively a black box.
The evaluator conducts the interview privately, then emerges later with conclusions everybody is expected to treat as reliable despite having no ability to independently review the underlying interaction.
Imagine applying that model elsewhere. Imagine a police interrogation that nobody recorded. Imagine a deposition where only one side’s summary survived. Imagine a witness interview where cross-examination was impossible and no transcript existed. Nobody would tolerate that in most other serious litigation contexts. Yet family courts often treat this as perfectly normal. Worse, evaluator opinions frequently acquire an aura of scientific certainty they do not deserve.
The report is long. The evaluator has credentials. Psychological terminology appears throughout the document. The recommendations sound clinical and confident. Judges are busy. The temptation to defer to the evaluator becomes enormous. And too often, that is exactly what happens.
Corroboration Still Matters
If serious allegations are being made, courts should look for actual corroboration instead of simply deferring to evaluator impressions.
Do school records show corresponding behavioral changes? Do therapists’ records reflect consistent disclosures over time? Do medical records support the claims? Do neutral third parties observe the same concerns? Do the child’s actual behaviors match the allegations?
Reliable claims usually leave evidence outside the evaluator’s office.
Interview Methodology Matters
The reliability of any witness interview depends heavily on how the interview was conducted. That is true whether the witness is an adult or a child.
Were the questions open-ended or leading? Did the evaluator allow the child to answer freely, or repeatedly redirect the child toward certain subjects? Was the child interviewed once or multiple times on the same allegations? Did the evaluator carefully document the child’s actual words, or merely summarize the interview later through the evaluator’s own impressions and interpretations?
Those questions matter. A great deal. Yet in many child custody evaluations, nobody besides the evaluator can answer them later because no recording exists.
The court therefore cannot independently review the wording of the questions; the sequence of the questioning; the tone of the interaction; whether the child appeared confused or uncertain; whether the evaluator interrupted or reframed answers; or whether important context was omitted from the final report.
Instead, the court is often left with only the evaluator’s summary of what supposedly occurred. That is not a minor evidentiary issue. It goes directly to reliability. And the more heavily courts rely on custody evaluator recommendations, the more important it becomes that the underlying methodology be transparent and subject to meaningful scrutiny. Without recordings, much of that scrutiny becomes impossible.
Recording Interviews Would Improve the System
Recording child interviews would not eliminate subjectivity. It would not eliminate disagreement. It would not magically produce perfect outcomes. But it would substantially improve transparency and accountability.
A recording would allow courts to review tone, context, questioning style, and responsiveness directly instead of relying entirely on somebody else’s summary.
It would allow meaningful scrutiny of methodology. It would discourage sloppy interviewing practices. And it would make it much harder for anybody—evaluator, parent, lawyer, GAL, or even judge—to exaggerate, mischaracterize, selectively quote, or overstate what a child actually said.
That matters because once there is no recording, everyone else in the system is forced to rely largely on representations about the interview instead of the interview itself.
Recordings protect children, but they also protect honest evaluators. A careful evaluator should want an accurate record preserved. So should a GAL. So should a parent genuinely confident in the accuracy of what the child actually said.
Right now, family courts often make major child custody decisions based partly on conversations nobody else can independently examine. That should not be treated as normal simply because the family court system has grown accustomed to it.
Utah Family Law, LC | divorceutah.com | 801-466-9277