What “Special Training” Does a Judge Really Need to Talk to a Child?
In Utah child custody disputes, one of the stock objections to having a judge interview a child is that judges lack “specialized training” in interviewing children.
Say “specialized training” and everybody seems to stop asking questions. Why? Specialized training in what, exactly? What, if any, essential training does the judge lack?
This is not an argument against training. Learning and applying good interviewing practices are entirely worthwhile. But “specialized training” should not function as an incantation that ends the inquiry.
The skills needed for an ordinary judicial interview of a child are important, but they are neither mysterious nor beyond the ability of a competent judge to learn and apply without first attending one or more seminars. Judges who want high-quality seminars can attend them and should not be discouraged from attending. The question is whether attending “training” is essential to competent interviewing. It clearly is not.
Utah law itself authorizes the court to inquire into a child’s desires concerning custody and parent-time and provides for the court to conduct such interviews in camera. The statute does not condition that authority on completion of child-interviewing training.
Start with What Is Actually True
Judges interviewing children need to understand suggestibility, know the difference between open-ended and leading questions, they must use age-appropriate language, recognize loyalty conflicts, avoid promising outcomes, avoid making the child responsible for the result, ask for examples and clarification, and distinguish what the child personally observed from what someone told the child (and by the way, training is now complete).
All worthwhile. But none of this is mystical knowledge. None of this is unknown to judges. A judge who wants to refresh or improve these skills can read a competent text or interviewing protocol. Don’t overcomplicate this, folks.
Judges Already Do Things Much Harder Than This
Domestic relations judges spend their careers evaluating credibility, questioning witnesses, dealing with frightened and traumatized people, hearing abuse allegations, distinguishing observation from speculation, recognizing evasion, assessing bias and motive, evaluating expert testimony, separating advocacy from evidence, and making enormously consequential decisions affecting children.
Yet when the judge proposes to ask a twelve-year-old, “Tell me what happens when you stay at Dad’s house,” the careerists suddenly act as though the judicial officer is attempting surgery without a medical license.
That should strike us as more than a little odd. Because it’s invalid on its face.
What, Precisely, Is the “Special Training”?
Utah’s current Private Guardian ad Litem (PGAL) program does require training (the training is a joke, but it does exist). The law governing PGALs also permits the program director to establish qualifications and evaluate PGAL performance. Fine.
But notice what that does—and does not—establish.
It establishes that the PGAL completed required instruction.
Does it demonstrate that the PGAL can reliably interview children? Is interview proficiency tested? Is an interview observed and graded? Must the attorney demonstrate the ability to avoid suggestive questions? Is there a recorded interview that can later be reviewed to determine whether the PGAL actually applied what was taught?
A certificate of completion proves completion. It does not prove competence.
Sitting through a seminar is not the same thing as demonstrating expertise.
“The PGAL received specialized training” becomes the basis for claiming that the person who actually decides the case is unqualified to speak directly with the child.
“Special” and “Training” Both Deserve Examination
Much of what gets characterized as specialized child-interview training consists of sensible practices that are readily learned: establish rapport; explain the purpose of the conversation; speak understandably; avoid unnecessarily leading questions; ask for examples; clarify ambiguous answers; do not promise outcomes; and make clear that the child is not choosing which parent wins (again, class dismissed).
These are sound practices worth knowing. What they are not is esoteric expertise.
Useful? Certainly. Arcane? Hardly. Necessary as a formal credential before a judge may competently talk with a child? Not even close.
The problem begins when ordinary instruction is rhetorically inflated into specialized expertise, and the supposed expertise is then used as a credentialist veto against direct judicial fact-finding.
What About Forensic Abuse Interviews?
A formal forensic interview concerning alleged child sexual or physical abuse presents additional concerns. Suggestibility, evidentiary contamination, interview sequencing, preservation of evidence, and possible criminal proceedings can make the task considerably more demanding.
That still does not make the subject intellectually inaccessible to judges.
The practical limitations are more often institutional: judges generally lack the time, facilities, investigative role, and resources to conduct a full forensic investigation. But that does not mean a judge’s own interview of the child has no place in the larger forensic process.
Quite the opposite.
A judicial interview can be one data point among many—and sometimes a crucial one. The court may also have a formal forensic interview, medical records, therapist records, testimony from parents and other witnesses, law-enforcement reports, expert opinions, contemporaneous communications, and other evidence. The judge’s conversation with the child need not replace any of those sources to add something important to them.
Indeed, hearing directly from the child gives the factfinder something no second-hand summary can provide: the opportunity to hear what the child actually says, what the child does not say, how the child describes events in the child’s own words, whether the account is consistent with other evidence, and whether follow-up questions clarify or complicate what others have reported.
That does not turn the judge into the investigating detective, therapist, or forensic interviewer. It means the judge—who must ultimately evaluate all of the evidence—obtains a relevant piece of that evidence directly and unfiltered.
Besides, most judicial interviews in child custody disputes are not forensic abuse interviews at all. Questions about routines, relationships, experiences, preferences, school, discipline, transitions between homes, or what happens in each parent’s household ordinarily do not require a full forensic-abuse protocol.
Even where abuse is alleged, the existence of a formal forensic interview does not logically require the judge to close his or her ears to the child thereafter. The judge’s interview can complement the forensic interview rather than compete with it.
“Child + questions = expert required” does not follow.
If Interviewing Technique Matters So Much, Why Aren’t PGAL Interviews Recorded?
Here the argument starts contradicting itself.
Suppose child interviewing really is so delicate that the interviewer’s precise technique substantially affects reliability.
That makes recording the interview for review more important, not less.
With a recording we can determine whether a question was leading, whether the child qualified an answer, whether the interviewer misunderstood, whether context disappeared in the later retelling, and whether the interview produced competent evidence useful to the factfinder.
Yet Utah PGAL interviews of children are never preserved in a verbatim record.
We are thus asked to accept this proposition: The judge should not conduct a recorded interview because interviewing children demands special expertise. Instead, another lawyer should conduct an unrecorded interview and later tell the judge what the child supposedly said and what the lawyer believes it meant.
That does not solve a reliability problem. It magnifies it.
Some defend—or rather, try to defend—the absence of a recording as a protection for the child: if there is no recording, an angry parent cannot obtain it and use the child’s words against the child. But preserving an accurate record and deciding who should have access to it are two entirely different questions.
If retaliation is a legitimate concern, restrict access where necessary (where necessary). Limit dissemination where necessary. Permit counsel rather than the parents to review it where necessary. Protect particularly sensitive portions where an identifiable risk warrants protection.
Destroying, hiding, or never creating the most accurate account of what occurred is not a sensible way to protect a child.
It leaves the factfinder with a second-hand account vulnerable to faulty memory, selective emphasis, misunderstanding, and, yes, sometimes outright misrepresentation.
Calling that absence of evidence a “safeguard” is like calling secret evidence due process.
Accuracy and completeness matters, so making no recording is a strange (and indefensible) direction to take.
We Trust Judges to Decide a Child’s Custody and Parent-time Fates—but Apparently Not to Talk to the Child About Them
Judges decide where children live. They decide whether parent-time should be restricted or supervised. They decide whether abuse allegations are credible. They decide whether children relocate. They sometimes make decisions that effectively determine whether a parent remains an ordinary part of a child’s daily life.
These decisions can affect a child for life.
Yet we are supposed to believe that the same judicial officer cannot conduct a careful conversation with the child without first obtaining some additional credential.
We trust judges to decide a child’s life, but apparently not to talk to the child about it.
Let the Factfinder Find the Facts
Sound training can improve performance. No sensible person disputes that.
But formal third-party training is not essential to a judge’s ability to conduct a competent child interview. Judges who want additional instruction can obtain all they want. Courts can develop concise protocols. Judges can read competent interviewing materials. Counsel can submit proposed subjects or questions. Interviews can be recorded so technique and accuracy are reviewable.
If “special training” is sought, it should improve individual judges’ interviewing skill, not become a credentialist veto against it.
When the supposed solution to imperfect judicial fact-finding is to replace a recorded conversation between the child and the factfinder with the second-hand report of an unrecorded alleged conversation with an intermediary, “special training” has stopped being a quality-control argument and become an excuse for avoiding direct evidence.
Utah Family Law, LC | divorceutah.com | 801-466-9277