Category: Witness Testimony

Pgals (Private Guardians Ad Litem) Are a Bad Idea.


You’ll hear the argument that a PGAL should be appointed for a child because we don’t want to traumatize children by having them testify on the record. Where is the evidence that a child testifying for the record so traumatizing to the child as to be unthinkable, causes irreparable damage, or that the value of the testimony is outweighed by the adverse effects on the child?

You’ll hear the argument that a judge is not qualified to question children. Oddly, you’ll hear that argument from the judge. And the argument is patent nonsense. Judges are authorized by the Utah Code to interview children. The Utah Code permits children to testify if and when they testify voluntarily. Does that come as any surprise?

You’ll hear the argument that what a child may say when questioned may go beyond scope of what is relevant. OK, that’s certainly possible, but it’s hardly unusual for a witness, adult or child, to testify beyond the scope of the examination. That’s been happening (and will continue to happen) with witnesses for centuries. When that happens with a child witness, objections are raised, the witness is instructed to stay within the scope of examination, we get back on track, and we move on. To suggest that children must not be questioned because they may ramble or talk about irrelevant things is silly.

You’ll hear the argument that the best way to ensure that a child’s voice is heard is by having someone else speak for the child (in the form of a PGAL). That argument is invalid on its face.

You’ll hear the argument that a PGAL has access to evidence and facts that the parties and/or court don’t. But that’s simply not true.

You’ll hear the argument that a PGAL can make arguments on behalf of a child in court. OK, sure, but why would that be a reason to prevent the child client from testifying for himself too? So that his/her testimony is known for the record unfiltered, complete, and unadulterated?  We don’t bar other people who are represented by attorneys from testifying.

You’ll hear the argument that a PGAL is a “trusted adult,” someone a child can talk to. But a judge isn’t a trusted adult a child can talk to?

You’ll hear the argument that a judge won’t hear from therapists or other collateral contacts while a PGAL will, but that’s simply not true. The bottom line is that PGALs are being appointed to prevent a child’s testimony from being obtained for the record, from being known for the record, to prevent that child’s testimony from being evidence on the record in the case, and thus to prevent that evidence from influencing the decision of the court. That’s indefensible.

Utah Family Law, LC | | 801-466-9277

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How Do Witnesses Contribute to the Decision-Making Process in Child Custody Hearings and Trials?

If what we learn from witnesses didn’t generally tend to be more informative and reliable than not, then we wouldn’t listen to witnesses at all. No sensible person believes that which he or she knows not to be true, and as long as we don’t know a witness is lying or have reason to believe the witness is lying, we normally benefit from believing what a competent witness says as true.

So, the qualifiers for a good witness or someone who is competent to testify and someone who does not give us any apparent reason to believe the witness is a liar or has any other motive but to tell the truth as the witness perceives it.

Good witnesses in child custody proceedings are witnesses who have personal knowledge of facts that are relevant to the child custody award. Bad witnesses are just the opposite. If the witness convinces us that he or she has such personal knowledge, the court will almost certainly consider that witness’s testimony in formulating its child custody award decision.

Generally speaking, it’s difficult for lying witnesses to get away with lying to the court. Inexperienced liars often (but not always) give themselves away. How? Some ways include: telling unbelievable and inconsistent stories, giving testimony that is clearly biased in favor of one party or clearly biased against the other party, giving testimony that clearly is rehearsed or comes across as rehearsed and not from personal knowledge and easy, confident recall.

Of course, if it weren’t possible to fool people into believing lies, very few lies would be told. Many judges and court personnel (not all, but more than you might suspect) mistakenly believe that they have an above average ability to detect lies. This thus sometimes results in judges accepting as true testimony that is false, and deeming to be false testimony that is true.

This is why lawyers tend to favor objectively verifiable fact over witness testimony, or at least over witness testimony alone, if and when it’s ever possible to provide such independently verifiable objective fact as evidence in a case.

But in child custody cases, given the predominantly private nature of family life, it is hard to prove objectively that a parent has been physically, sexually, or emotionally abusive, physically or emotionally neglectful, an alcohol abuser, mentally or emotionally crippled, a parent who truly cares about his or her children and has formed a strong loving bond with his slash her children, etc.

And so, the next best thing that we have is witness testimony. Not all witness testimony is created or treated equally. If a parent calls his own mother or father or best friend as a witness for that parent, the court is likely to believe or at least suspect—and in my opinion, rightfully so–that such a witness is biased. That such a witness will be likely to downplay (or outright deny) the parents weaknesses and sins and exaggerate (or outright fabricate) the parent’s virtues and accomplishments.

Witnesses who are perceived as most credible are those who don’t appear to have any personal interest in the outcome of the case. People who have nothing to gain or nothing to lose by giving their are honest account and opinions.

For better or for worse, witnesses do inform the judge’s child custody award decision. It’s always frustrating, even sometimes heartbreaking, when a judge believes lying witnesses and disbelieves honest witnesses (and then decides issues based upon false data), but no judge is infallible. The more you can rely upon objective, independently verifiable fact over witness testimony, the better.


Utah Family Law, LC | | 801-466-9277

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How Can I Show the Court a Parent’s Previous Words and Deeds to Show He/She Is Lying?

What you are asking about is called “impeaching” the witness.

There are many ways to impeach a witness. One way is to ask him or her questions to which the answer is already known (and you have independently verifiable proof of it) to see if the witness will answer falsely in response to them. If the witness lies, then you can “impeach” the witness by showing the court the proof of what is true and thus expose the witness as a liar.

But bear this in mind: just because you showed that a witness lied does not necessarily mean the court will not consider the witness’s testimony. I literally had a judge tell me that, despite the fact I impeached the witness in regard to one subject, the judge could tell the difference between when the witness was lying and when the witness was telling the truth. I’m not sure how the judge could perform such a feat, but that’s what he claimed. But even if a judge were not to claim to be a living lie detector, showing that a witness lied does not mean that the court must reject all of the witness’s testimony or refuse to hear anything else the witness may have to say.

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

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