Get the Testimony of Children on and for the Record (Forego a Custody Evaluation)

In my previous blog on the subject of child custody evaluations (link to pervious blog ) I started a series of video critiquing custody evaluations. I never saw the value in them, but for years I went along with them either because A) I thought there may be some value to them that I didn’t yet perceive; and B) I didn’t have a well-defined, well-defended alternative to them to propose. Those days are over.

I now make no secret of being highly disappointed by the intellectual, evidential, and jurisprudential disingenuousness that props up 1) the popularity of child custody evaluations; 2) the way they are performed (meaning the way they are performed currently); and 3) the way they justify accepting or rejecting the custody evaluator’s recommendations. As I explain in more detail in my previous video, custody evaluations are obscenely expensive, waste an obscene amount of time, and are evidentially defective. Yet the majority of lawyers and judges still favor custody evaluations over faster, less expensive, and more reliable forms of evidence. They make many patently lame arguments to support child custody evaluations. One of the most repeated is this: deposing children (a deposition is essentially questioning a child under oath, just not in the courthouse) and/or an interview with a judge risks causing harm to the children, or at least more potential harm than a custody evaluation would cause them. If you ask just how deposing children or having them interviewed by a judge risks causing the children harm, the answer you will get is “that would involve the children in the custody dispute.” But when you ask (as you should ask) how having a custody evaluator interview the children doesn’t “involve the children in the custody dispute” you’ll get a blank stare and/or a “you’re just stupid, if you can’t see the emperor’s new clothes”-kind of response. If you follow up with the question of how a custody evaluator interview is materially any different than having a lawyer or judge interview the children, you’ll be told something along the lines of, “custody evaluator’s are neutral,” but so is a judge. And if the defenders of custody evaluator interviews point out that lawyers for the parents are not neutral and thus are somehow disqualified from questioning nobody other than the children, you can show many ways to prevent a lawyer for a parent from abusing the deposition process (if and only if there is any proof in the first place that the lawyer would do that). By way of just two examples: 1) require the list of questions to be asked of the child to be approved by the judge in advance; and/or 2) hire a referee to supervise the deposition.

Besides, the very presumption that subjecting children to a custody evaluation does not risk materially harming the children (and being nervous is not harm) lacks proof. Nor is there any credible proof that being questioned by a lawyer and/or a judge is inherently harmful to a child in any material way. Face it. Admit it: a child who is uncomfortable with talking about child custody issues is going to be uncomfortable with it regardless with whom who he talks about it. There’s a vast difference between being uncomfortable and being harmed, and any rational human being knows how to tell the difference. The claim that it’s inherently harmful to children for a lawyer or judge to interview them for and on the record but that a custody evaluator who makes no verifiable record cause less or even now harm is bunk.

Utah Family Law, LC | | 801-466-9277


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