If you are in a child custody dispute and the court appoints a “guardian ad litem,” it sounds reassuring. A lawyer appointed for the child? What could there be not to like about that? Someone whose only job is to look out for your child. No agenda, no side, just the child’s best interests. Sign the child up now, right?
That goes a long way toward explaining why the system exists and why courts lean on it so heavily. Intent, however, is not the same as implementation.
You must understand what these appointments tend to produce in practice, because the gap between the two is wide—and it can drastically (a word I don’t use often) affect the outcome of your case.
This post describes both: 1) what a GAL or PGAL is intended and hoped to do, and 2) what actually happens in real Utah custody litigation when a GAL or PGAL is appointed.
First, get the terms right: GAL is not the same as PGAL
The original concept is simple. A guardian ad litem (GAL) is a lawyer the court appoints to represent the interests of someone who cannot represent themselves in the case—here, a child.
In Utah, though, “GAL” covers two very different things, and the difference matters to you:
- The state GAL (Office of Guardian ad Litem). These are full-time attorneys employed by the State of Utah. In a district court divorce or custody case, a state GAL is generally appointed only when there are formal allegations of abuse or neglect and the parties are found indigent. The State pays.
- The private GAL (PGAL). This is a private attorney appointed under Utah Code § 78A-2-705 in ordinary high-conflict custody and parent-time disputes. The parents pay—usually a retainer plus an hourly rate, with the court splitting the cost between you.
In a typical contested divorce with no substantiated abuse and parents who are not indigent, the figure you will actually encounter is the PGAL. If someone tells you a “GAL” has been appointed in your custody case, they almost always mean a PGAL you are about to fund. The original version of this explainer blurred that line. Don’t.
What a PGAL is intended and hoped to do
On paper, the role is appealing.
The PGAL is supposed to be the child’s lawyer—independent of both parents, aligned with neither, advocating for the child’s best interests rather than either parent’s litigation position. The hoped-for function looks like this:
- Independence. The PGAL represents the child, not Mom and not Dad, and is therefore supposed to filter the conflict rather than join it.
- Investigation. The PGAL gathers information to understand the child’s circumstances—reviewing filings, talking with the parents, interviewing the child when appropriate, and contacting teachers, doctors, therapists, or others with relevant knowledge.
- Best interests over wishes. The PGAL is supposed to weigh the child’s safety, stability, and development—not simply relay what the child says he or she wants. An older child’s preference is one factor, considered alongside everything else.
- Useful input to the judge. The PGAL is supposed to surface facts and concerns the court might not otherwise see, so the judge can decide on a fuller picture.
If the system worked the way it is described, a PGAL would be a genuine asset: a careful, neutral investigator giving the court reliable information about your child. That is the aspiration. Now to the reality.
What actually happens in practice
Start with the statute, because the statute is narrow and the practice is not. Section 78A-2-705 appoints the PGAL ostensibly as the child’s attorney. That is the whole of the authority. Nothing in it makes the PGAL a witness, an expert, an investigator whose findings are evidence, or a substitute for the child’s own testimony. Yet that is precisely what Utah courts routinely allow PGALs to become. The day-to-day practice has drifted so far from the statutory text and the Rules of Evidence that it is hard to defend on the law. Here is what the drift looks like from inside a real case.
The PGAL’s “recommendations” get treated as evidence—when they are not. A PGAL tells the court, in a hearing or a written disclosure, what arrangement the child supposedly needs and why. Courts often receive this the way they would receive testimony or an expert report. But a recommendation is argument. Argument needs admitted evidence to stand on. A PGAL’s say-so, without underlying proof in the record, is just a lawyer’s assertion dressed up as a finding.
It is hearsay, and you cannot test it. When a PGAL reports “the child is afraid of Dad” or “the child wants to live with Mom,” that is an out-of-court statement offered for its truth. Normally a party gets to confront and cross-examine the source. Not here. The PGAL is not treated as a witness, is not under oath, and cannot be cross-examined. The child usually is not heard from directly either. So the most consequential statements in your case can arrive in a form no one is allowed to challenge.
There is no record at all. If a PGAL has ever recorded their interviews with children, I have yet to see it happen. Some PGALs interview the children only briefly. Some do not interview them at all. Because nothing is required to be documented, no one can later verify what was asked, what was said, or whether the work was thorough or competent. No record means no accountability and, on appeal, almost nothing to challenge—the ruling becomes effectively insulated from review.
The child’s actual voice often disappears. One of the unstated but no less deliberate reasons a PGAL is appointed is to keep the child from testifying. The result is that the court seemingly hears about your child through a filter, rather than from your child directly—even when a mature child wants (or is at least willing) to be heard and could be heard safely and reliably through a sheltered, recorded interview.
The influence is large; the basis is often thin. Judges give real weight to PGAL recommendations in part because the PGAL carries the implicit credential of being “trained” to work with children. That credential deserves scrutiny. The training amounts to a few hours of instruction covering material so basic that any experienced attorney or commissioner already knows, or could absorb in an afternoon of preparation time.
PGAL status does not confer any special expertise in child development, forensic interviewing, or psychological assessment. It is a threshold requirement, not a qualification. Yet a recommendation built on that credential—and on an unrecorded conversation no one can examine—routinely drives the outcome of custody and parent-time orders.
Quality varies, and you are paying for it. PGALs differ enormously in diligence, care, and competence. You have limited ability to evaluate the work before it shapes the result, and limited recourse if it is thin—and you are funding it the entire time.
None of this means every PGAL does a poor job, or that the role is performed in bad faith (but neither does it mean the opposite). The problem is structural: the system permits unverified, unrecorded, untested input to be treated as reliable fact, and then relies on it.
Why the system tilts this way
It helps to be candid about the incentives, because they explain the gap.
PGAL appointments are convenient for a busy court. They shorten hearings. They relieve the judge of the uncomfortable task of hearing directly from a child and weighing that testimony (and being responsible for the knowledge). They shift difficult fact-finding off the bench. And they offer a measure of cover—”I relied on the child’s attorney.” Convenience is a powerful force in a crowded docket. It is not, however, a substitute for evidence or due process, and it is not what the statute authorizes.
What this means if a PGAL is appointed in your case
The practical upshot is not “panic,” and it is not “cooperate blindly.” It is this:
- Take the appointment seriously. A PGAL’s impressions can shape your result even when the underlying basis is thin. How you present yourself matters.
- Be honest, organized, and measured. Provide what is requested promptly. Do not exaggerate concerns about the other parent—overstatement damages your credibility and tends to help the other side.
- Hold the recommendation to a standard. Work with your attorney to insist that any recommendation rest on actual, admitted evidence, and to object where a PGAL strays into testifying, opining as an expert, or substituting for proof that belongs in the record. Preserve the record for appeal.
- Ask whether your child can be heard properly. In the right case, a carefully structured, recorded interview of a capable child is more reliable—and often less distressing—than a secondhand summary no one can test.
- Know the cost going in. A PGAL adds real expense. Before you ask for one, understand what you are buying and what it is likely to deliver.
A guardian ad litem can, in principle, give a court an independent, child-centered account that improves a hard decision. In Utah custody practice, the role too often delivers something narrower and less reliable than its description: influential conclusions, lightly documented, that no one is allowed to examine. Understanding that difference is the first step to protecting your child—and your case—when a PGAL is appointed.
Utah Family Law, LC | divorceutah.com | 801-466-9277