Blog

Utah Courts Should Stop Paying an Intermediary to Tell the Factfinder What the Factfinder Can Hear Directly

When a child’s wishes, concerns, experiences, or perceptions matter in a Utah child custody dispute, courts often act as though appointing a private attorney guardian ad litem (PGAL) is somehow safer, wiser, or more sophisticated than having the judge or commissioner speak directly with the child. That premise deserves more skepticism than it gets.

A PGAL is a lawyer, not a psychologist by virtue of the appointment, and not a custody evaluator (the Utah Office of Guardian ad Litem itself says so expressly), not even a witness (expert or otherwise). The current PGAL program requires scant and basic training. If (if) that training is needed to make a PGAL competent to interview a child, there’s an obvious fix available to judges and commissioners too: give them the same training, and then compare the two methods honestly.

One method has a lawyer allegedly interview the child privately (hence, the interview will always be “alleged” because it’s private and thus unverifiable) and later tell the judge what the lawyer believes the child said, meant, wanted, or needed. The other method has the actual decision-maker speak with the child directly, ask follow-up questions in real time, hear the child’s own words, preserve the exchange on the record, and decide for himself or herself what weight it deserves. For the purpose of learning what a child actually thinks, knows, fears, wants, and has experienced, the second method isn’t just less expensive and less time-consuming. It’s better by every meaningful measure.

None of this means PGALs have no legitimate role; investigation and advocacy are different functions. The point is that when the court needs to know what a child actually thinks or wants, inserting a lawyer between the child and the factfinder usually makes the information worse, not better.

The Supposed Expertise Gap Is Thinner Than It Looks

A stock objection to judicial interviews of children is that judges aren’t specially trained child interviewers. I submit that’s not true. But if a lack of training is the defect, then train the judges. Utah doesn’t impose anything close to a clinical degree requirement on PGALs.  Applicants need Bar membership, recommendations, background checks, and practice-based PGAL training, but nothing approaching a mental-health credential. The training is minimal and nothing that a judge or commissioner could not competently obtain by a few hours of self-study.

So training itself isn’t the problem. What makes no sense is treating a relatively short training program as though it transforms one lawyer into someone uniquely capable of speaking with children, while treating judges and commissioners as permanently incapable of learning the same skills. Judges and commissioners already spend their careers questioning people: assessing confusing accounts, asking follow-up questions, separating firsthand knowledge from assumption, dealing with frightened, angry, traumatized, immature, evasive, or unsophisticated witnesses, age-appropriate questioning, avoiding suggestive questions, asking neutral follow-ups. Utah also already requires judicial education on child abuse, domestic abuse, trauma, and coercive control in custody proceedings. No reasonable person can maintain that judges and commissioners, by virtue of holding judicial office, are somehow incapable of interviewing children competently.

But if there are additional techniques that don’t already get enough attention and are worth teaching, then go ahead and teach those to judges too, if they don’t already know them. It’s hard to maintain with a straight face that judges and commissioners can’t acquire the same competence as a PGAL in the same or similar way that a PGAL does.

Compare the Two Interview Methods

Here’s the comparison that ought to happen before a court appoints another intermediary just because someone says the court needs to “hear the child’s voice.”

Issue	PGAL interview	Recorded in-camera judicial interview	Better method for hearing the child
Who actually hears the child?	An intermediary	The person who will decide the case	Judicial interview
Transmission of the child’s words	PGAL allegedly hears them, interprets them, then reports or argues about them	Judge hears the child’s actual words (and on the record, so we know it to be true)	Judicial interview
Risk of information loss	Question, answer, tone, qualification, context, and uncertainty may be compressed into the PGAL’s later account	Original exchange is preserved for the record	Judicial interview
Immediate follow-up questions	PGAL decides what follow-up to ask; judge cannot react to the child’s answer at the time	Factfinder can follow up immediately	Judicial interview
Ability to distinguish knowledge from assumption	Judge receives the PGAL’s characterization after the fact	Judge can ask, “Did you see that?” “Who told you that?” “What happened next?” “What do you want, and why?”	Judicial interview
Child’s own wishes versus somebody else’s view of them	PGAL represents “best interests,” which can differ from what the child wants	Judge hears what the child wants and separately determines best interests	Judicial interview
Accurate appellate record	PGAL’s private interview itself ordinarily is not the court record	Interview recorded verbatim	Judicial interview
Cost to parents	PGAL fees and related expenses are assessed against the parties	No additional privately billed professional is necessary	Judicial interview
Delay	Appointment, assignment, interviews, document collection, conferences, and later reporting can take weeks at best, and usually takes months	Court can schedule a limited interview directly much faster	Judicial interview
Risk of intermediary influence	Child knows the PGAL has his/her own opinions and an ongoing role in the litigation	Interview occurs with the neutral factfinder, and on the record	Judicial interview
Decision-making authority	PGAL recommends; PGAL does not decide	Judge receives information and decides	Judicial interview
Need to translate the child’s meaning for the court	Built into the process	Usually unnecessary—the court itself heard it directly and unfiltered, unparsed	Judicial interview
Interviewing training	PGAL training is minimal, basic, and takes but hours to complete.	Give judges and commissioners equivalent training, if they need it at all.	Tie at best—and therefore no justification for the intermediary
Custody-evaluation expertise	PGAL expressly is not a qualified custody evaluator merely by being a PGAL	Judge is not pretending to be an evaluator; judge is gathering information relevant to adjudication	Judicial interview avoids the false-expert problem

For the specific task of conveying a child’s own information to the person who must decide the case, adding a PGAL generally adds distance, cost, delay, interpretation, and information loss. It’s worth asking plainly what that buys in return.

Utah Law Already Recognizes Direct Judicial Inquiry

Utah law doesn’t treat a judicial interview as some foreign practice. Utah Code § 81-9-204 expressly recognizes a child’s stated wishes and concerns as relevant to custody, authorizes the court to inquire into a child’s desires concerning future custody and parent-time, and requires such interviews to be conducted in camera. A child’s wishes aren’t controlling, and the wishes of a child age fourteen or older get added weight without becoming dispositive.

But framing the child purely as a preference-witness undersells what’s actually at stake. A child old enough to be interviewed is frequently one of the most percipient witnesses available to the family’s actual history and dynamics—who was present for what, how each parent behaves day to day, what the household environment is actually like. The child also has the largest personal stake in the outcome of any party in the case, and no one else’s. Treating that person as someone whose voice is worth hearing only through a lawyer’s secondhand summary, when the child is capable of competently communicating for herself, isn’t merely cautious. It’s genuinely hard to defend.

That doesn’t mean the interview should turn into a fact-finding session on contested allegations against a parent—a child’s account of disputed conduct, offered without the accused parent present to test it, raises real due-process problems, and nothing here argues around those. The point is narrower and doesn’t need to be stretched that far: on the question the interview is already lawfully authorized to ask—what does this child think, want, and perceive about custody and parent-time—there’s no good reason to let a PGAL stand between a competent child and the person deciding children’s futures.

The PGAL Has a Built-In Translation Problem

Utah’s PGAL statute illustrates the problem well. A PGAL must personally meet with and interview the child when appropriate and, to the extent possible, determine the child’s “intent and desires” (Utah Code § 78A-2-705) regarding custody or parent-time—but that same PGAL is also charged with representing what the PGAL determines to be the child’s best interests. Utah law expressly contemplates that the child’s own wishes may differ from the PGAL’s best-interest determination, and when that happens, the PGAL generally communicates both to the court, subject to statutory limitations.

That means the PGAL is performing at least three different mental operations: what did the child actually say, what does the PGAL think the child really means or wants, and what does the PGAL believe is nevertheless in the child’s best interest. Those are different questions, but in practice they can (and obviously do) blur together. A judicial interview helps keep them separate—the judge can hear the answer to the first question directly, while the PGAL, the parents, the lawyers, and properly qualified experts (if needed, and experts rarely are, but I digress) can help the court work through the third. There’s no good reason to degrade the first question by routing it through the second before it ever reaches the court.

And a PGAL Is Not a Custody Evaluator

This point deserves emphasis, because family-law practice has a habit of conferring quasi-expert status on anyone with a specialized title. The Utah Office of Guardian ad Litem’s own PGAL page states, in capital letters, that a PGAL does not meet the qualifications to act as or be appointed as a custody evaluator; Utah’s custody-evaluation rule imposes separate professional qualifications and training requirements. (Utah Office of Guardian ad Litem – PGAL)

That distinction should be taken seriously. Courts shouldn’t treat PGAL recommendations as though the PGAL has some special ability to discern truth, detect manipulation, diagnose family dynamics, or determine what parenting arrangement will produce the best developmental outcome. A lawyer can investigate, advocate, make arguments, and interview a child—but if interviewing a child is the qualification that supposedly makes the PGAL indispensable, that’s circular. Judges (and regular old attorneys) can interview children too.

What About Coaching?

Another common response is that children may be coached. They may. So may adults—witnesses of all kinds may misunderstand, exaggerate, minimize, repeat things they were told, align themselves with someone they love, or form inaccurate conclusions. And appointing a PGAL does not prevent or even mitigate coaching. Coaching possibilities argue for careful questioning, not for refusing to speak with the witness at all. Direct questioning can be especially useful precisely when coaching is suspected: a judge can ask what happened, where the child was, who else was there, whether the child saw it directly or was told about it, when the child first heard it, what made the child feel a certain way, and whether anyone has talked with the child about what to say in the interview.

None of those questions magically detects coaching—no interviewer has that power. But direct inquiry preserves opportunities for clarification that get lost when the court receives only someone else’s summary. If anything, concerns about coaching argue for careful firsthand inquiry, not for adding another intermediary to the process.

There Are Things a PGAL Can Do That a Judge Cannot

This is where intellectual honesty matters. A PGAL has legitimate functions that an in-camera interview can’t replace. Utah law directs a PGAL to conduct an independent investigation, interview witnesses, review medical, psychological, and school records, attend proceedings, present evidence where necessary, identify resources, and advocate for the child’s best interests. A judge obviously shouldn’t become an investigator or an advocate, so where a case genuinely requires an independent lawyer to investigate collateral information or provide the child with ongoing representation, a PGAL can serve those real functions.

But that proves something narrower than it might sound like it proves. It shows a PGAL may sometimes be needed for investigation or advocacy—not that a PGAL is a better vehicle than the judge for communicating the child’s own words to the judge. Those are different propositions, and the practice of family law tends to run them together.

The Cost Difference Is Not Trivial

A judicial interview isn’t literally free—judges are paid, courtrooms cost money, and so do recording systems. But those costs already exist regardless of how a given case is handled. The relevant question for litigants is whether the court needs to bring in another professional whose fees may then be assessed against the parents. Utah law specifically contemplates assessing PGAL fees, court costs, paralegal costs, staff costs, and volunteer expenses against the parties, subject to indigency and other provisions.

So when the actual need is simply “we need to know what this fifteen-year-old thinks and why,” the first response doesn’t have to be “appoint another lawyer.” A judge or commissioner can speak with the child privately, record it, let the lawyers propose appropriate areas of inquiry, protect the record from public dissemination, and then let the judge judge. That can take forty-five minutes. The alternative can (and almost always does) take months and cost thousands of dollars.

There Is an Accountability Difference Too

A sound-and-visual recorded judicial interview leaves an unusually clean trail. We can know exactly what the judge asked, exactly what the child answered, whether questions were leading, whether qualifications were ignored, whether the child claimed firsthand knowledge, whether the judge fairly characterized the child’s statements afterward, and whether the information actually supports the eventual findings. That’s accountability.

It also captures more than the bare transcript would. Tone of voice, pacing, hesitation, whether a question needed to be repeated or rephrased, whether the child sounded coached or rehearsed versus spontaneous—a sound-and-visual recording preserves the texture of the exchange, not just its words. A cold transcript can flatten all of that into something that reads far more confident or far more uncertain than the interview actually was.

It also captures more than the bare transcript would—tones of voices, seating and body language, who else was in the room, whether the child seemed at ease or on guard. A cold transcript can flatten all of that into something that reads far more confident or far more uncertain than the interview actually was.

By contrast, when the important conversation happens privately between a PGAL and a child, the court typically receives the output of that conversation without a verbatim record of the input. Utah law now requires a PGAL who makes a best-interest recommendation at a hearing to disclose the factors forming the basis for the recommendation, which is an improvement—but “here are the factors I relied on” isn’t the same as “here is exactly what I asked, and here is exactly what the child said.” Courts should prefer the latter whenever it’s practicable.

Conclusion

Family law has a bad habit of turning ordinary human tasks into specialties, and talking with children is one of them. Children aren’t miniature adults—their age and maturity matter, questions should be age-appropriate, leading and coercive questioning should be avoided, and a frightened or conflicted child should be handled carefully. None of that establishes that a lawyer who attends PGAL training has some aptitude unavailable to a judge. If a few hours of additional training genuinely improves judicial interviews, Utah should require it of every domestic-relations judge and commissioner; the expense would be small compared to the accumulated cost of appointing PGALs year after year on the assumption that courts can’t safely speak with children themselves. Utah has no shortage of practitioners and CLE providers who could deliver that training at minimal cost — this isn’t a budget problem dressed up as a competence problem.

The unexamined assumption worth testing isn’t whether PGALs should exist—there are cases where a child genuinely needs independent legal representation. It’s the assumption that appointing a PGAL is inherently superior to direct judicial communication whenever a child’s voice matters. Measured against the questions that actually count—who gets the child’s actual words, who avoids an extra layer of interpretation, who can follow up immediately, who produces the cleanest record, who costs the parents less, who avoids turning an ordinary lawyer into a quasi-expert by title alone, and who leaves the decision where our system says it belongs—the PGAL doesn’t come out ahead of a recorded in-camera judicial interview.

If the legitimate objection is training, train the judges. If the objection is child protection, structure the interview properly. If the objection is coaching, ask careful questions. If the objection is appellate review, record it. If a case separately requires investigation or a true advocate for the child, appoint one for that reason. But courts shouldn’t spend parents’ money inserting a human relay station between a child and the person whose job it is to decide the case. Sometimes the best way to hear a child’s voice is the obvious one: hear the child.

Utah Family Law, LC | divorceutah.com | 801-466-9277