At a recent hearing, a commissioner explained why she was appointing a private guardian ad litem instead of interviewing the child herself:
“Given the age of the child, the statutory framework allows for a guardian ad litem, which the court is appointing here. Given the age of the child, I think it would be probably scary for her to come meet with the court. Secondly, secondly, as I said, I do not have that specific training in interviewing children, and I don’t find that it would be the best way for the court to get that information.”
I hear versions of this constantly. It is not a one-off. And it does not hold up.
The statute already answers this
Utah Code § 81-9-204(5)(b) lets the court “inquire and take into consideration the minor child’s desires regarding future custody or parent-time schedules.” Subsection (5)(c) tells the court how: the interview is conducted in camera, and—this is the part objectors skip past—”the prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a minor child is the only method to ascertain the minor child’s desires.” The Legislature anticipated exactly this scenario and built a direct, judicially controlled, on-the-record method for getting the child’s input. It is not exotic. It is not improvised. It is Subsection (5), sitting right next to the custody factors the court is already applying.
A PGAL appointment under § 78A-2-703 is a legitimate tool for a different problem: when the child’s interests need independent representation, when there’s a conflict between what a parent wants argued and what’s actually good for the child, or when the case needs an investigator with time and resources the court doesn’t have. It is not a substitute for the court hearing the child directly when the statute already provides for that.
“It would be scary for her” doesn’t get you to a PGAL
If the concern is that a courtroom, a robe, and a judge behind a bench are intimidating to a child, fine (although I find such a “concern” to be more in the imagination than in the real world), and it’s exactly why (5)(c) requires the interview to happen in camera, not in open court, not with the parties present. The statute solves for the stated problem. Sending the child instead to a stranger’s office to be interviewed by an attorney she’s never met, with no judge (or other oversight) present and no transcript, does not make the experience less foreign. It just moves the same conversation somewhere less accountable.
“I’m not trained to interview children” is not a real barrier
Judges assess credibility, weigh conflicting testimony, and make findings about vulnerable witnesses’ statements as a routine part of the job. Interviewing a child about a preference—not cross-examining her, not building a case, just asking what she wants and why—is not a specialized clinical skill locked behind a certification. It requires patience and a plain-spoken manner, not a doctorate. If a commissioner genuinely doubts her ability to talk to a fourteen-year-old without traumatizing her, the fix is a short bench training, not permanent delegation of a statutory function to a third party. And if a judge genuinely believes he/she lacks the requisite training (a belief that lacks merit in light of how basic PGAL training is), the fix is available and costs nothing: the Utah Office of Guardian ad Litem provides child-interview training free of charge, and it takes a few hours. A commissioner who cites a training gap as the reason for permanently routing around a statutory function, rather than closing that gap, is choosing not to solve the problem she says she has.
Where the child’s voice actually goes
This is the part I’ve written about before in connection with PGAL accountability: once the interview is handed off, the child’s actual words never reach the record. What reaches the record is the PGAL’s summary and recommendation—a filtered, advocate-mediated version of what the child said, offered by someone who is not testifying under oath and is not subject to cross-examination in the way a witness would be. The court ends up making a best-interest finding based on a report about what a child supposedly wants, instead of the child’s own words in camera, memorialized the way § 81-9-204(5)(c) contemplates. That is a worse evidentiary posture, not a more protective one.
It gets worse. Section (5)(c) allows the court to dispense with the parties’ consent to an interview “if the court finds that an interview with a minor child is the only method to ascertain the minor child’s desires regarding custody.” Other than in exceptional cases—where a child’s age, disability, or documented trauma makes direct inquiry genuinely inappropriate—that is always true. The only evidentially sound way to find out what a child wants is to ask the child, directly, with the inquiry preserved on the record in the most reliable format available: a sound-and-visual recording of an in camera interview conducted by the person who has to weigh it. Anything else is hearsay dressed up as best-interest evidence.
Then compare that to what the PGAL statute actually requires. Under § 78A-2-705(13)(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.” Read that again. The statute lets a child’s stated wishes get filtered out of the record entirely—not by the court applying a best-interest standard, but by the child telling the PGAL to keep it quiet, or by the PGAL simply reporting that nothing was expressed. There’s no comparable off-switch on a § 81-9-204(5)(c) interview. The court hears what the child says, full stop, and weighs it against everything else. The PGAL substitute doesn’t just dilute the child’s voice with a layer of advocacy—it builds in a mechanism for the voice to disappear from the record altogether.
What the objection is really doing
Strip away the stated rationale and the practical effect is the same every time: the child’s actual voice gets one more layer between it and the judge who has to weigh it. If a judge or commissioner has a case-specific reason to prefer a PGAL—conflicting interests, a need for an investigator, a genuinely traumatized child who needs more than an in camera conversation—that’s a reasoned decision, and I’ll take it. “It would be scary” and “I’m not trained” are not reasons. They’re a default disguised as caution, and both the statute and reason already tell the court how to do the harder, better thing.
Utah Family Law, LC | divorceutah.com | 801-466-9277