One of the strangest objections to judges interviewing children in child custody disputes is that the interview might make the child anxious.
Of course it might.
The child’s parents are separating. They may be fighting bitterly. The child may already know that adults are arguing over where the child will live, how much time the child will spend with each parent, and whether one parent is supposedly dangerous, neglectful, controlling, unstable, alienating, or worse.
The question is not whether the situation is emotionally difficult. It already is.
The question is whether a properly conducted in camera interview with the judge makes that burden worse—or can actually make it lighter.
The whole point of an in camera interview is to reduce pressure on the child.
No open courtroom. No parents staring at the child. No lawyers cross-examining. No demand that the child publicly choose between Mom and Dad. No requirement that the child somehow “win” the case for one parent.
Instead, the judge can sit down with the child and explain something simple:
You are not in trouble. You do not have to decide anything. That is my job. I just want to understand what things are like for you.
That is supposed to be terrifying?
Stop Confusing an Interview with Testimony
Much of the anxiety surrounding judicial interviews seems to come from imagining something that nobody is proposing.
An in camera judicial interview is not the same thing as putting a child on the witness stand or taking the child’s deposition. The fears surrounding those procedures are often overblown too, but that is another subject.
The child need not sit in a courtroom or conference room. The parents need not be present. Lawyers need not question the child. The child need not hear objections or accusations or be treated as though the child were a hostile witness.
A well-conducted in-camera interview can be conversational, age-appropriate, limited in scope, and recorded. Whether the record should be restricted from anyone—and from whom—should depend on an actual reason, not a reflexive invocation of “privacy.”
Indeed, the procedure is designed specifically to remove many of the things that would make conventional testimony frightening.
Treating the interview as though it inherently exposes the child to the miseries of litigation is therefore backwards. The interview is one way of insulating the child from them.
Who Decided Children Are Naturally Terrified of Judges?
There is another unsupported assumption buried in the conventional objection: children will naturally be frightened by the judge.
Why?
Adults know what judges represent to adults. Authority. Power. Contempt. Losing. Court orders. Cross-examination. Lawyers. Sanctions.
A child does not necessarily bring all of that baggage into the room.
Much depends on how the adults explain the meeting.
Tell a child, “The judge is going to question you about your parents,” and yes, you may frighten the child.
Tell the child, “The judge sometimes talks with kids—with no one else around—because he/she wants to understand what things are like for them. You are not in trouble, and you do not have to make any decisions,” and you have framed an entirely different experience.
Adults can—and very often do, sometimes for self-serving purposes—manufacture much of the very anxiety they later cite as proof that judicial interviews are harmful.
Why Is the PGAL Supposed to Be Less Intimidating?
This is where the conventional argument becomes difficult to take seriously.
We are told that the child may be too frightened or uncomfortable to speak with the judge, so instead we appoint a private guardian ad litem—a lawyer the child has never met and had no hand in selecting—to ask the same questions.
Why should that be more comfortable?
The PGAL is also an unfamiliar adult. Usually a lawyer. Appointed because the parents are fighting. Asking about Mom, Dad, siblings, discipline, schedules, relationships, preferences, allegations, and conflict.
Why should the child naturally trust that person more?
The child may not (likely does not) even understand the PGAL’s role. Whose side is this lawyer on? What will she tell Mom? What will she tell Dad? Is the PGAL deciding where I live? Can he get me in trouble? What happens if I tell her something she does not like?
The judicial officer’s role can often be explained much more simply: I am the person who has to make some decisions. I want to understand what things are like for you.
There is no sound reason to presume that the PGAL interview is inherently gentle while the judicial interview is inherently intimidating. That is not psychology. It is professional folklore.
Sometimes Being Heard Reduces the Burden
Children involved in serious child custody disputes usually know more about the conflict than adults—parents, attorneys, commissioners, and judges—like to pretend.
They know Mom and Dad are upset with each other. They know at least one parent says the other is unreasonable. They know schedules are changing. They notice lawyers, therapists, evaluators, court hearings, whispered conversations, exchanges gone bad, and questions about what happens in the other parent’s home. And that’s when the parents aren’t fighting dirty.
Preventing the child from speaking directly to the decision-maker does not necessarily protect the child from the dispute.
It may leave the child wondering whether anyone actually knows what is happening.
Did Mom tell the judge what I said?
Did Dad?
Did the PGAL understand me?
Did the PGAL tell the judge what I really meant?
Will anyone ask me what actually happens?
A limited opportunity to speak directly can relieve some of that uncertainty.
Being heard is not the same thing as being made responsible for the outcome.
The judge can make that distinction explicit.
Yes. The added line helps because it directly mocks the catastrophizing without denying that a difficult conversation can be genuinely difficult.
I would make only two changes: replace “difficult dispute” with “difficult conversation,” because the child is not really participating in the litigation itself; and change “irreparable damage” to something slightly less absolute so opponents cannot dismiss it as caricature.
Children Are Not Hothouse Flowers
This is where some child-custody thinking becomes excessively paternalistic.
Children are people.
They have thoughts. Memories. Preferences. Opinions. Misunderstandings. Insights. Fears. Loyalties. Sometimes very good judgment. Sometimes poor judgment.
Just like adults.
The fact that a child is going through a difficult time does not mean the child becomes incapable of participating productively in a difficult dispute.
Nor does emotional discomfort automatically equal psychological harm.
A child can be nervous and still answer questions intelligently.
A child can be sad and still describe what happens at home.
A child can love both parents and still explain that one home feels calmer than the other.
A child can dislike talking about something and still benefit from being taken seriously.
And all without being irreparably damaged.
The goal should not be to protect children from every difficult conversation. Being interviewed by a PGAL does not avoid the difficult conversation anyway. The goal should be to protect children from unnecessary pressure, manipulation, responsibility, and harm.
Those are not the same thing.
“But Judges Need Special Training”
Then comes the talismanic phrase: judges should not interview children because they lack “special training.”
Special how?
Good interviewing practices matter, of course. Children can be suggestible. Leading questions can distort answers. Vocabulary and developmental level matter. Interviewers should avoid pressuring children, promising outcomes, or making them feel responsible for the court’s decision.
None of this is mystical knowledge. None of this is unknown to judges.
A judge who wants to refresh or sharpen these skills can read a competent text or protocol on interviewing children. Don’t overcomplicate this, folks.
Judges routinely teach themselves new bodies of law, unfamiliar financial concepts, technical evidentiary issues, scientific subjects, business structures, medical terminology, and countless other matters necessary to decide cases competently.
We somehow trust them to learn all of that, but asking a child open-ended, non-leading, age-appropriate questions supposedly requires initiation into a specialized professional guild.
Why?
What exactly is the training?
How many hours?
What curriculum?
What competence is tested?
Does completing a seminar prove that the attendee is skilled at interviewing children?
Sitting through a seminar is not the same as demonstrating expertise.
Much of what gets described as “specialized child interview training” consists of sensible practices that can be learned: establish rapport, explain the purpose of the conversation, use language the child understands, avoid unnecessarily leading questions, ask for examples, clarify ambiguous answers, and make clear that the child does not decide the case.
These are sound practices worth knowing. What they are not is esoteric expertise. Useful? Certainly. Arcane? Hardly.
Even Forensic Interviewing Is Not Magic
There is a legitimate distinction between an ordinary judicial interview and a formal forensic abuse interview.
If the issue is whether a very young child was sexually abused, for example, evidentiary contamination, suggestibility, investigative protocols, and criminal proceedings may make the interview far more technical.
But even forensic interviewing is not beyond the ability of a judge.
The more realistic limitation is institutional.
Judges do not ordinarily have the time, facilities, repetition, investigative mandate, or resources to conduct full forensic investigations. That may make delegation appropriate.
But that is a limitation of role and resources—not proof that judicial officers are somehow incapable of understanding or applying sound interviewing principles.
We should distinguish “the court should not perform an entire forensic investigation” from “the court cannot competently talk to a child.”
Those propositions are nowhere near the same.
We Trust Judges to Decide a Child’s Custody and Parent-time Fates—but Not to Talk to the Child?
Domestic relations judges decide whether abuse allegations are credible.
They decide whether a parent should have supervised parent-time.
They decide where children will live.
They decide whether children should move hundreds of miles away.
They decide whether a child’s relationship with a parent should be dramatically restricted.
These decisions can shape the course of a child’s life.
Yet we are sometimes told that the same judicial officer cannot competently spend an hour or so talking with the child.
We trust judges to decide a child’s life, but apparently not to talk to the child about it.
That proposition deserves more skepticism than it usually receives.
Which “Safeguards” Actually Safeguard Anything?
There are real safeguards worth implementing.
Do not make the child responsible for choosing a parent. Avoid leading questions. Use understandable language. Keep parents and lawyers out of the room. Limit the interview to matters reasonably relevant to the dispute. Record it. Seal the record where—and only where—appropriate.
Those measures accomplish identifiable things.
But family law also accumulates traditions that get called safeguards simply because they sound protective.
Do not interview the child because it might be uncomfortable.
Use an intermediary because intermediaries are supposedly less intimidating.
Require “special training” without asking what the training actually establishes.
Assume that shielding children from direct participation is always healthier than allowing them to speak.
Those are not safeguards merely because professionals have repeated them for years.
Some may amount to little more than feel-good procedural rituals that make adults believe they have protected children while making the fact-finding process less direct and less accountable.
A safeguard should protect against an identifiable risk. Otherwise it may just be conventional wisdom coasting on inertia.
Employ safeguards to solve actual problems, not because they sound protective.
If Child Interviews Are So Delicate, Record Them
There is one final irony.
If interviewing children is truly so delicate that the wording of every question matters, then preserving the interview should be especially important.
A recording allows a court—and, if necessary, a reviewing court—to know what was actually asked and what the child actually said.
Was the question leading?
Did the child qualify the answer?
Did the interviewer misunderstand?
Was something important omitted from the later summary?
Did the interview produce competent evidence helpful to the factfinder?
Without a recording, nobody other than the interviewer can reliably verify any of this.
Yet the supposed solution to the delicacy of child interviewing is often to send the child to an intermediary, have the intermediary conduct an unrecorded conversation, and then have the intermediary later tell the judge what the child supposedly said and what the intermediary believes it means.
If accuracy matters, making no recording is a strange (and indefensible) direction to take.
Protect Children from Undue Pressure, Not from Being Heard
Children should not be weaponized in custody litigation.
They should not be pressured to choose sides.
They should not be coached.
They should not be saddled with responsibility for decisions adults must make.
But protecting children from those harms does not require protecting them from a calm conversation with the judge.
Children are not hothouse flowers.
Sometimes they are nervous. Sometimes the subject is difficult. Sometimes they would rather not talk about it.
That does not make the conversation harmful. And it certainly does not justify replacing a direct, recorded conversation with the decision-maker with an indirect, unrecorded conversation with an intermediary.
The better question is not, “How do we keep the child from having to talk about difficult things?” In a serious custody dispute, that conversation is often going to happen somewhere, with someone, anyway. The better question is, “How do we make that conversation as useful, fair, accurate, and minimally burdensome as possible?”
Often, the answer is not complicated.
Let the child speak with the person who will actually make the decision. Tell the child plainly that the decision is not the child’s responsibility. Ask competent, understandable questions. Do not manufacture fear around the process. Make an accurate record so no one later has to guess, paraphrase, or reinterpret what was said.
Then make the adults carry the burden that belongs to them.
That is not dragging children into the litigation. The litigation is already shaping their lives. Silencing them in the name of protecting them does two things badly: it handicaps the court’s effort to determine what is actually in the child’s best interest, and it invites willful ignorance of highly relevant evidence from the person living the facts the court is trying to understand.
Let the judge talk to the child. Have the judge talk to the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277