Why Won’t Judges and Commissioners Interview Children?

I recently participated in a hearing before a domestic relations commissioner in which the commissioner refused to interview a child and ordered a guardian ad litem (GAL) appointed, even though 1) the commissioner had the exact same child interview training as what a GAL had and 2) Utah Code § 30-3-10(5)(b)(i) expressly authorizes the judge or commissioner to interview the child. In other words, there was nothing that made the commissioner any less qualified to interview the child than a GAL, but the commissioner refused to interview the child and instead appointed someone else to interview the child and ordered the parties to pay for it. This is the norm in Utah with the overwhelming majority of judges and commissioners assigned to child custody cases in divorce and parentage cases.

So why appoint a GAL? Why not have the court interview the child instead of a GAL? Why incur the costs of having to pay for the appointment of a GAL when the court questioning the child:

  • is free of charge;
  • on the record (guardian ad litem interviews are not on the record and not subject to discovery);
  • does not violate the attorney-client communications privilege;
  • results in direct testimony from child to court, without any intermediary to taint or misreport or misconstrue what questions the child asked and how the child answered them (as opposed to an interview of which there is no record made of the questions asked—and unasked—and the answers given—or not given—followed by recommendations made on the basis of no independently verifiable position; and
  • suffers from no “court-sponsored hearsay” problem because the child is questioned directly by and responds directly to the judge or commissioner on the record.

There are even more good reasons for judges and commissioners to interview children directly. Now of course there will be certain cases in which a child is too young or too fragile to justify having a judge or commissioner interview a child, but I have yet to have anyone explain the logic behind the almost wholesale opposition of courts to directly interviewing children. I cannot find any sense in thinking: “I know that I’m authorized by statute to question the child (and that I either have or can quickly get the same interview training a GAL receives), but I won’t question the child and instead I will have someone else do it, charge the parties to do it, ensure that the questioning (if it takes place at all) is not on the record, have the appointed questioner make recommendations without there being any way to verify whether there is a factual foundation for the recommendations, and I’ll justify all of this by claiming this is in the best interest of the child by claiming (without evidence because there can be no evidence) that somehow a GAL questioning a child does no harm but a judge or commissioner (who the child would not be able to distinguish from a GAL) questioning a child is somehow almost sure to cause a child harm.”

If anyone reading this honestly asserts that appointing a GAL is better than having the child questioned by the court on the record, please explain how, in any substantive way, appointing a GAL is better than having the child questioned by the court on the record.

Utah Family Law, LC | | 801-466-9277

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