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Category: Witness Testimony

Rejecting Fact for Faith: the Inexplicable and Inexcusable Silencing of the PGAL’s Child Client

When a PGAL (private guardian ad litem) is appointed to represent children in a child custody dispute in a Utah divorce case, it would sure be good to know what the PGAL and the children actually said to each other (not merely believe, not trust any second-hand source’s claims as to what the children purportedly said, but know what the children said) by having a by having an audio and/or sound-and-video recording of the what the PGAL and the children actually said to each other. I am not aware of any evidence that proves or so much as suggests that having such a record is (is, not may be, but is) prejudicial or harmful to anyone.

The reasons why should be obvious.

I don’t have to believe you if you tell me that your fingerprints are not on the murder weapon. In contrast, I cannot deny your fingerprints aren’t on the murder weapon, when you show me the murder weapon has none of your fingerprints on it.

If you had an eye witness who could provide you with an alibi, you would need the witness himself to testify. You couldn’t say to the judge or jury, “Trust me, I have an eye witness, and if he were here, he’d tell you that Mickey shot Jerry, not me.” The only way to know if such a witness really exists and is not just a convenient figment of your imagination is to hear from the witness himself. Indeed, if you tried to speak for a phantom witness, that would be inadmissible hearsay. Objective fact is self-evidently more probative than unverified stories and claims. This is why we don’t rely on hearsay when we can hear first-hand from the witness.

You wouldn’t want people trying to put words in your mouth and misrepresenting what you do and do not say. It’s why the rule against hearsay exists, and for good reason. It’s why the public rose up and demanded bodycams for police (because the police were caught lying so much and chronically violating innocent people’s rights in the process). It’s why we need verifiable proof that medicine actually works and aircraft can safely takeoff, fly, and land before we use them.

Yet PGALs in Utah all but universally refuse to interview children on the record and oppose children being questioned by anyone else on the record. Instead, PGALs expect that everyone believe 1) what the PGAL claims to have asked the children in the PGAL’s interviews with them and 2) what the PGAL claims the children said in response 3) and to believe the PGALs without the children being subject to cross-examination. “Believe the PGAL on what basis?,” you may ask. Merely being appointed as a PGAL. That’s like expecting one to believe a witness in court merely because the witness swore an oath to tell the truth (which would be as unreasonable as it is irresponsible). Being a PGAL doesn’t render one incapable of lying or incapable of misperceiving or misremembering details. Being a PGAL free the PGAL from personal biases and prejudices that hamper impartiality and sound judgment.[1]

Even if someone subjectively believed a PGAL were infallible and could never lie and never misperceive reality, subjective belief would not make it so. It could not make it so. Subjective belief is inherently not, and inherently can never be, superior to objectively verifiable fact. 

Yet the courts indulge—and knowingly indulge—in this kind of thing all the time. “Trust that the PGAL is telling us the truth because he/she is a PGAL,” or “We don’t need to hear from the children directly, the PGAL speaks for them.” It would be one thing if a PGAL claimed to speak for a child client and the child client at least went on the record to verify, “Yes, what the PGAL just proffered is correct,” but we don’t even have that. Once a PGAL is appointed, the child is rarely—if ever—heard from himself/herself. Even when the child is willing to testify. I’m not kidding. I’m not exaggerating.

Sometimes we don’t have objective proof. Sometimes all we have to go on is believing (or not believing) someone’s word. But belief is plainly not the highest standard of proof (thank goodness). When we can rely on fact over faith, we are morally, intellectually, and legally obligated to do so. 

When accuracy and truth matter (and when do they not?) and if and when we can hear directly from that particular person himself/herself, no one should “trust” what anyone (not just you–anyone) says someone else allegedly said.

Any PGAL who would assert, “I have or could have objective verification for my claims, but I refuse to provide such verification; take my word for it,” is a PGAL no one can be obligated to believe. I ask sincerely: how can any PGAL or judge or commissioner who believes that the PGAL serves to silence a child client’s own voice be trusted?

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


[1] Indeed, if we took every word of the PGAL as gospel, we wouldn’t need a judge to do anything other than rubber stamp what the PGAL says. If the PGAL says the children claim Dad beat them, well then, that’s what the children said—after all, the PGAL says so. No need to inquire into whether the children were coached, coerced, brainwashed, or chose to lie. And because the law in Utah is construed to mean that children “represented” by PGALs are prohibited from speaking for themselves, no inquiry with the children on the record will ever take place. Does that look like “fact” finding, like due process, like a just and equitable process to you?

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You Can’t Tell What The Judge Is Thinking By Braxton Mounteer, Legal Assistant

I recently accompanied my boss to the trial of a divorce case. If I had had to place a bet on what the judge was thinking at given moment or what the rulings would have been during the trial or at the end, I would have left the courtroom much poorer. One of the things that struck me most about trial was my inability to determine the importance a judge gives to the evidence and to witness testimony. I could not consistently predict which way the judge was leaning at any given moment. But it’s not solely a matter of my inexperience with the legal system. My boss (who has considerable trial experience) told me he encounters the same thing.

We believe this is intentional on the judge’s part, that judges deliberately wear a poker face (some better than others). If a judge expressively reacted to a piece of evidence or to testimony, it might give a false (or true) indication that the judge is favoring one party over the other.

An actual trial is not like the movies and television shows would have you believe (at least at a divorce trial isn’t). There was no audible gasp from one side or the other when a piece of evidence was entered. The lawyers don’t (at least not typically) swagger around the court room cracking wise or orating so as to bring the room to tears. It really was just the evidence and argument from one party versus evidence and argument of the other.

Now a judge being inscrutable is not to say the judge sits stone-faced and silent until the trial ended. The judge can and usually will make clear and candid statements occasionally during the trial. Sometimes the judge will ask a witness questions of his or her own, but sparingly (judges are discouraged from doing too much of their own questioning). And the judge obviously must rule on objections raised during the questioning of witnesses too. During recesses, the judges and attorneys and sometimes even the parties and witnesses may chat about sports or local news to unwind a bit from the tension that builds up over the course of the trial. Some judges will essentially let the lawyers go until the time runs out. Other judges may inform the parties and their lawyers whether the direction they are taking the case in isn’t all that useful to the court in reaching its ultimate decision.

The notion of “reasonable minds can differ” stands out in stark relief at a trial. Sometimes what the lawyer tries to persuade the court to do and what the court decided are the same, but other times what the court did with the evidence can really surprise you. Keep that in mind when you’re convinced that the judge could not possibly rule any way but the way you favor. The better you understand all the possible arguments, the more accurately, reasonably, and persuasively you can make yours.

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Blanket prohibitions on child testimony in custody and parent-time disputes are irrational and irresponsible

Thomas Sowell said (in a discussion of politics and governance), “There are no solutions. There are only tradeoffs, and whatever you do to deal with one of man’s flaws it creates another problem, but you try to get the best solution you can get.”

So often in human experience the response to a problem comes down to compromise. We must be careful not to overstate the principle, of course. We need to be moral. We need to be honest and fair. Compromise comes up not in compromising our values for the sake of expediency, but when reasonable minds can differ. When people are too rigid in their positions, quite often everyone loses. Nothing gets done. One of the things that annoys me about the lack of understanding this principle in family law is when attorneys, courts, or advocates with certain agendas take rigid positions that depends upon ignoring the reasonable arguments of the other side for their rigid positions to have supposed unassailable merit.

Take my efforts to allow child testimony in child custody and parent time dispute cases.

There are those who believe that involving the children in the litigation process by asking them questions and seeking their input through testimony about what they’ve experienced, how they feel about it, and what they may desire by way of custody and parent time schedules can do nothing but harm the children. Those against child testimony in any form offer several arguments:

  • Testifying causes children to feel as though their loyalties are hopelessly split between the two parents they love. Children may feel as though they must break the heart of one parent in pleasing the other parent.
  • It causes children to fear reprisals and retaliation by parents who may be angered or upset by children’s testimony.
  • It exposes children to matters they are unprepared and unqualified to deal with, to issues better left to adults to resolve.
  • Children are generally incompetent and/or incredible witnesses.

There are some fair points there. But when people focus on these points to the exclusion of all other fair and reasonable points to the contrary, they don’t do their cause any favors. Ignoring rational counterarguments or rejecting them out of hand rouses skepticism as to just how strong and how broadly applicable the argument really is. An argument that denies any defects is usually proof that defects exist. Acknowledging the flaws and weaknesses in one’s position helps to reveal the extent of its strengths and applicability.

Granted:

  • Some (not all) children cannot testify without it doing them serious psychological and or emotional damage.
  • Compelling some (not all) children to testify might expose them to heinous reprisals from a wicked parent (although muzzling a child to “protect” him/her from a retaliatory parent only rewards—and thus encourages—bad behavior on the part of parents). Otherwise stated, sometimes the harm the child might suffer for his/her testimony outweigh the benefits of the child’s testimony to the court.
  • Not all children are competent and/or credible witnesses due to their age leaving them too young to understand the difference between right and wrong, truth and falsity. They could be mentally disabled or mentally ill to the point that they cannot perceive reality accurately. Or they could simply be too immature to know what’s good for them.

But we must also acknowledge that:

  • some children have no cause to fear retaliation from either parent, and so they don’t fear either parent.

–  some children are not only willing to share their experiences, observations, feelings, opinions, and desires—if called upon to do so, but want to do so. They wish to have a voice in the child custody and parent time analysis and decisions. Children who are sufficiently intelligent and mature to make intelligent and mature contributions to the evidence should be heard. The court needs to consider that evidence in making the child custody and parent-time awards.

  • competent, credible child witnesses are often the best, sometimes the only, witnesses to certain facts that bear crucially upon the child custody and parent-time award decisions.
  • children are, after all, the greatest stakeholders in such decisions. They have the most to gain or lose by the quality of the decision.

Thus, to ignore (or even refuse) such evidence from a willing, competent, credible child witness is, in my opinion, malfeasance on the part of a judge deciding child custody and parent-time matters.

It is easy to “prevent” what harm child testimony may cause some children by prohibiting all child testimony, but at what cost? Such extreme measures deprive some children (and the courts deciding their custody and parent-time fates) of the benefits their testimony could yield. Blanket prohibitions on child testimony in all cases are no better than mandating children testify in all cases. The matter of whether a child testifies ought to be decided on a case by case basis, and competent, credible child witnesses should testify if called to testify, unless there is clear and convincing evidence that the testimony’s probative value is substantially outweighed by a clearly and particularly articulable danger (not a mere, generalized claim of risk—every venture necessarily includes some risk) of irreparable harm to the child, were the child to testify.

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

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Family Law Legislation for the 2024 Utah State Legislative Session

Here is a list of the current proposed family law legislation for the 2024 Utah State Legislative session, along with a (very) brief description of the proposed legislation. If you want to read the complete bill, I have provided the links each of them.

Next month, I will provide my comments and those of others who have expressed their opinions on whether and why these bills should or should not be passed into law.

House Bills

House Bill 20

Title:  Parental Rights Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0020.pdf

Purpose: This bill: clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

House Bill 81

Title: Domestic Violence Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0081.pdf

Purpose: This bill adds the crime of propelling a bodily substance or material to the list of crimes that qualify as a domestic violence offense in certain circumstances; and makes technical and conforming changes.

House Bill 110

Title:  Sex and Kidnap Offender Registry Amendments

https://le.utah.gov/~2024/bills/static/HB0110.html

Purpose: This bill changes references from the Department of Corrections to the Department of Public Safety; clarifies the purpose of the Department of Public Safety keeping certain information for individuals on the Sex and Kidnap Offender Registry; and clarifies the requirements the Bureau of Criminal Identification and the Department of Corrections must check for when an individual petitions to be removed from the registry.

House Bill  129

Title:  Child Support Requirements

Purpose: This bill provides that a parent or other obligated individual is not responsible for child support for a child who is in the custody of the Division of Child and Family Services; and makes technical and conforming changes.

House Bill  131

Title:  Clergy Child Abuse Reporting Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0131.pdf

Purpose:  This bill clarifies that a member of the clergy may report suspected child abuse or neglect in certain circumstances; and makes technical corrections.

House Bill  134

Title:  Marriage Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0134.pdf

Purpose: This bill addresses the validation and recognition of a marriage regardless of the race, ethnicity, or national original of the parties to the marriage; repeals a provision on interracial marriage; and makes technical and conforming changes

House Bill  140

Title:  Parental Notification Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0140.pdf

Purpose: This bill amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual access to the parent’s child, and the individual has been convicted of certain crimes; amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and makes technical and conforming changes.

House Bill  157

Title:  Child Custody Factors Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0157.pdf

Purpose: This bill provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered: in a Division of Child and Family Services determination regarding removal of a child from parental custody; and when determining child custody as part of a divorce or other family law proceeding.

House Bill  194

Title:  Child Placement Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0194.pdf

Purpose: This bill amends the definition of “relative” for purposes of child placement, including adoption; and addresses when a court holds a hearing concerning a contested adoption.

House Bill  198

Title:  Child Welfare Placement Review Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0198.pdf

Purpose: This bill addresses the analysis a juvenile court undertakes when evaluating whether to terminate parental rights; and makes technical and conforming changes.

House Bill  199

Title: Child Welfare Revisions

https://le.utah.gov/~2024/bills/hbillint/HB0199.pdf

Purpose: This bill amends definitions related to child welfare in the Utah Juvenile Code

House Bill  200

Title:  Order for Life Sustaining Treatment

https://le.utah.gov/~2024/bills/hbillint/HB0200.pdf

Purpose: This bill modifies professional conduct standards for physicians, advance practice registered nurses, and physician assistants to include obtaining a parent or guardian signature when completing an order for life sustaining treatment for a minor; and makes technical and conforming changes.

House Bill  219

Title:  Divorce Imputed Income Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0219.pdf

Purpose: This bill provides standards for imputing income to a spouse who will be receiving alimony payments from another spouse; provides potential limitations on imputation of income for alimony purposes in some circumstances where the recipient spouse has no recent full-time work history or has been diagnosed with a disability; excludes situations where the recipient spouse has been determined to be at fault; and makes technical and conforming changes.

House Bill  220

Title:  Divorce Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0220.pdf

Purpose: This bill adds factors to be considered when determining the standard of living that existed during a marriage; requires a specific look-back period for information provided to demonstrate the financial conditions and needs of a spouse seeking to be awarded alimony; places restrictions on when a court can reduce a showing of need related to alimony; provides alternative means for demonstrating income and the standard of living during a marriage; and  modifies provisions related to when a court may elect to equalize income between parties by means of an alimony award.

House Bill  234

Title:  Birth Certificate Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0234.pdf

Purpose: This bill requires an individual when petitioning the court for a name or sex designation change on the birth certificate to indicate on the petition whether the individual is registered with the Sex and Kidnap Offender Registry; and authorizes the court to obtain additional information from an individual that is registered with the Sex and Kidnap Offender Registry to determine whether to grant a name or sex designation change petition.

House Bill  272

Title:  Child Custody Proceedings Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0272.pdf

Purpose: This bill defines terms; in certain proceedings involving child custody: specifies requirements for the admission of expert evidence; and  requires a court to consider evidence relating to domestic violence or abuse by a parent; imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child; requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;  requires that certain protective order proceedings comply with specific standards; and makes technical and conforming changes.

SENATE BILLS

Senate Bill 70

Title:  Judiciary Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0070.pdf

Purpose: This bill increases the number of district court judges in the Third Judicial District, Fourth Judicial District, and Fifth Judicial District; increases the number of juvenile court judges in the Third Judicial District and the 15 Fourth Judicial District; and makes technical and conforming changes.

Senate Bill 88

Title:  Juvenile Justice Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0088.pdf

Purpose: This bill defines terms; clarifies requirements regarding the collection of a DNA specimen from a minor adjudicated by the juvenile court; provides that a minor may not be placed in a correctional facility as an alternative to detention; provides a time period in which an agency is required to send an affidavit to an individual who is the subject of an expungement order by the juvenile court; and makes technical and conforming changes.

Senate Bill 95

Title:  Domestic Relations Recodification

https://le.utah.gov/~2024/bills/sbillint/SB0095.pdf

Purpose: This bill recodifies Title 30, Husband and Wife, to Title 81, Utah Domestic Relations Code; recodifies Title 78B, Chapter 12, Utah Child Support Act, to Title 81, Chapter 6, Child Support; defines terms; clarifies provisions related to a claim of a creditor when the joint debtors divorce or are living separately under an order of separate maintenance; clarifies the validation of a marriage to an individual subject to chronic epileptic fits who had not been sterilized; clarifies the validation of an interracial marriage; clarifies the validation of a marriage to an individual with acquired immune deficiency syndrome or other sexually transmitted disease; clarifies provisions regarding the rights and obligations during a marriage; clarifies provisions regarding the dissolution of a marriage, including: an order for separate maintenance; an annulment; and a divorce; clarifies provisions regarding child support, including: the requirements for a child support order; the general requirements for calculating child support; and the requirements for calculating child support for a sole physical custody case, a joint physical custody case, and a split physical custody case; clarifies provisions regarding custody, parent-time, and visitation; repeals statutes related to domestic relations, including a statute on the appointment of counsel for a child; and makes technical and conforming changes.

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

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Why Do Utah Courts Not Allow Child Testimony?

I had lunch today with a former legal assistant of mine who is now a law student in Arizona. Over the summer he shadowed judges in Maricopa County during their family court rotations.

He told me that in Arizona the courts permit children over the age of 10 years to testify in child custody proceedings.

Are the Arizona courts administered by fools and sadists?

Or could it be that the Utah district courts’ near-universal aversion to any and all forms of on the record child testimony in child custody proceedings is a case of misplaced priorities?

Could it be that the way Utah courts use appointments of guardians ad litem and/or custody evaluators for the ostensible purpose of “speaking for” competent witness minor children

  • is a sophomoric euphemism for good old fashioned hearsay?
  • ironically results in silencing the most percipient witnesses (regarding issues in which they have the greatest stake)?

Could it be that GAL “reports” and “recommendations” that are based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) are not fact or expert witness testimony (see State ex rel. A.D., ¶¶ 6 and 7, 6 P.3d 1137, 2000 UT App 216) and thus inherently not evidence?

Could it be that custody evaluator “expert testimony” and “recommendations” based upon purported interviews with the minor child (when there is no objectively verifiable record of whether the interviews even took place, to say nothing of what was and was not asked and answered in the course of the alleged interview) inherently can’t qualify as expert testimony (URE Rule 702 (Rules of Evidence))?

Special masters, parent coordinators, and the infantilization of parents

Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.

The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.

In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.

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

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

Why?

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 | divorceutah.com | 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 | divorceutah.com | 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 | divorceutah.com | 801-466-9277

https://www.quora.com/Can-you-ask-the-other-parent-in-court-and-then-provide-evidences-later-on-to-the-judge-so-that-they-will-see-that-the-parent-is-lying/answer/Eric-Johnson-311

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