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.
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.
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.
is a sworn affidavit or in a form accepted by the court as equivalent to a sworn affidavit; and
the content of the affidavit/statement is relevant to the issues before the court in your particular proceeding (“relevant” means the evidence “tends to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence”),
then you likely can submit the statement to the court and have the court admit it as evidence, with the content of the affidavit/statement treated like any other admissible testimony.
Utah Family Law, LC | divorceutah.com | 801-466-9277
There are “expert” witnesses for virtually any and every issue in legal actions.
Can judges be bamboozled by pseudo-scientific expert witnesses? Without question.
Do some judges who know that the so-called expert witness’s testimony is pseudo-scientific bunk (or at least know that the opinion has dubious scientific grounding) yet justify the ruling the judge wants to make by citing to those pseudo-scientific opinions? Without question.
So your question really should be, “Are there competent expert witnesses who can objectively prove my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is, in my opinion, “no.”
Other questions you should ask (and their answers, in my opinion):
“Are there competent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.”
“Are there incompetent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.”
“Are judges generally receptive to the concept (much less the actual occurrence) of parental alienation, and are they generally willing to hold a parental alienator accountable?” The answer to that question is “Some judges will acknowledge that parental alienation exists, but even then the amount and quality of evidence needed to persuade a judge that parental alienation occurred or is occurring is very high, in many cases unobtainably high.”
“Will proving the occurrence of parental alienation help me obtain court orders to protect my children from further alienation and psychological/emotional abuse?” The answer to that question is “maybe.” Some judges take a bizarre approach to proof of parental alienation, i.e., it is clear that [parent] has alienated the child(ren) from [other parent], but if I were to take the children away from the alienator or impose sanctions/restriction/monitoring/supervision on the alienator, then the alienated kids (who side with the alienator because they have been exploited and manipulated and abused) would suffer (i.e., suffer in the process of treating and reversing the alienation brainwashing and being restored to reality), so I am going to leave things be “for the sake of the children.”
Utah Family Law, LC | divorceutah.com | 801-466-9277
Commencing May 21, 2022, a new rule of the Utah Rules of Civil Procedure will be in force: Rule 100A. While I love the intention behind Rule 100A, reviewing the rule reveals it to be poorly structured, and I do not expect it to be followed strictly or even earnestly by most courts and attorneys. As a consequence, I do not expect Rule 100A to do much to expedite or otherwise improve the domestic relations case process.
Here is the text of the rule:
Rule 100A. Case Management of Domestic Relations Actions.
(a) Case management tracks. All domestic relations actions, as defined in Rule 26.1, will be set for a case management conference before the court, or a case manager assigned by the court, after an answer to the action is filed. At the case management conference, the court or a case manager assigned by the court must determine into which of the following tracks the case will be placed:
(1) Track 1: Standard Track. This category includes all cases that do not require expert witnesses or complex discovery. The court will certify a Track 1 case directly for trial. If the parties have not yet mediated, the court will order the parties to participate in good faith mediation before the trial takes place.
(2) Track 2: Complex Discovery Track. This category includes cases with complex issues that require extraordinary discovery, such as valuation of a business. For a Track 2 case, at the case management conference the court will set a discovery schedule with input from the parties and schedule the case for a pretrial hearing.
(3) Track 3: Significant Custody Dispute Track. This category includes cases with significant custody disputes, including custody disputes involving allegations of child abuse or domestic violence. For a Track 3 case, at the case management conference the court and parties will address: 1) whether a custody evaluation is necessary, and, if so, the form of the evaluation and appointment considerations; and 2) whether appointment of a private guardian ad litem is necessary, and if so, the scope of the appointment and apportionment of costs. The court will prepare and issue any resulting orders appointing a custody evaluator or guardian ad litem and schedule the case for either a pretrial hearing or a custody evaluation settlement conference.
(b) The court may set additional hearings as necessary under Rules 16 or 101. Nothing in this rule prohibits a court from assigning a case to more than one track, at the court’s discretion, or otherwise managing a case differently from the above guidelines for good cause.
My comment and critique follows below.
After the answer to the complaint or petition for divorce is filed, the case will be set for a case management conference before the court, or a “case manager assigned by the court,” (as of the time this blog post is written we have no idea what “a case manager assigned by the court” is, what a “case manager” does, or who can qualify to be a “case manager”). Case management conferences usually go nowhere because nobody wants to be held to a deadline if he/she can avoid it, so nothing in Rule 100A gives me any reason to believe that a Rule 100A case management conference will be any exception to the current SOP.
Moreover, because At the case management conference, the court or a case manager assigned by the court must determine on which track the case is:
Track 1 cases are cases “that do not require” expert witnesses or complex discovery. Track 2 cases are cases with complex issues “that require” extraordinary discovery.
How anyone would or could know whether a case requires expert witness or complex discovery at this early stage of the case the rule does not explain.
While I acknowledge that many divorce cases are not complex, what careful attorney or litigant would want to forego the option of expert witnesses or extraordinary discovery without first conducting basic discovery? I wouldn’t.
Track 3 cases are those that involve “significant custody disputes.” In actual practice, with rare exception, any case involving a dispute over the custody and parent-time awards involves “significant custody disputes.” Any disputed child custody case is going to qualify for Track 3. Adhering to Track 3 constitutes business as usual; it would do nothing to expedite or improve the domestic relations litigation process or experience.
In my opinion, in light of A) far faster, more accurate and probative, and less expensive alternative to the conventional custody evaluation process; and B) the way custody evaluations are performed in Utah, virtually every custody evaluation is unnecessary; and
Rule 100A does not articulate any criteria by which the question of whether a custody evaluation “is necessary” is resolved.
As to determining “the form of the evaluation,” I have yet to have a court determine the “form” of the evaluation when I have proposed certain elements of the form and of the process to be followed. Most judges and commissioners avoid addressing the matter altogether by claiming (falsely) that the form and process of the evaluation is dictated by the evaluator (which is nonsense; while the evaluator certainly can request that the evaluation proceed under certain terms and conditions the evaluator proposes, nowhere in Utah Code of Judicial Administration Rule 4-903 (which governs the procedure for seeking and performing custody evaluations) does it give the evaluator absolute control over the “form of the evaluation”).
As to “whether appointment of a private guardian ad litem is necessary,” rarely, if ever, have I experienced a guardian ad litem (GAL) adding value to the fact-finding in or the just resolution of a case. GALs are generally even less useful than custody evaluators. Where a custody evaluator and GAL are appointed, the result is wasted time and money, as well as confusion.
I do not see why under tracks 2 and 3 a trial date is set and the other deadlines for the case determined by working backward from the trial date. Setting a trial date and then setting the other deadlines by working backward from the trial date appears to me to be an effective way of ensuring that the parties work more expeditiously than setting the trial date after the parties finally determine that there is nothing more to do (or claim that they need to do) pre-trial.
I predict that Rule 100A will go down in history, as are most so-called improvement efforts of the court system, as a well-intentioned half measure, i.e., one that was neither crafted nor implemented well.
Utah Family Law, LC | divorceutah.com | 801-466-9277
My lawyer asked me to get letters of my character from my friends for family court to introduce as evidence, but do they really matter and is 12 enough?
Do letters vouching for one’s character really matter?
If so, are 12 character reference letters enough?
I will answer these questions:
in the context of a divorce and child custody case (because my guess is that is the kind of case for which your lawyer told you to get character reference letters); and
based upon the laws of the State of Utah, where I practice divorce and family law.
Do letters vouching for one’s character really matter? Another way one might ask this question is: “Do character reference letters have a major helpful impact on my case?” It’s impossible to say whether this is true in all cases. Some judges may give greater credence and weight to character references than do other judges. I think the key question is instead: “Is there any good reason not to submit positive character reference letters to the court in support of my case?” My answers to that question are:
I don’t see such letters posing a serious risk of harm to your case. If so,
Are 12 character reference letters enough? Probably more than enough, depending upon their respective length and content. 12 five-page, single-spaced, rambling letters without any paragraphing and bad punctuation and spelling are either not going to be read or remembered or, if they are remembered, will not be remembered favorably. Form letters that are all the same but for the signature at the bottom are a bad idea. Letters that attempt to build you up by tearing your spouse down aren’t terribly persuasive.
4 or 5 letters of one page or less, from credible (i.e., not just from from Mom and Dad, your minister and your best friend, but from neighbors and teachers, and others who don’t have a stake in the outcome of the case, for example) plain-spoken people who know you well and who make a cogent argument for your good character are probably about right in number and length. The only exception I can think of is if your spouse submits 10,000 character letters, then you may need to respond in kind, if the court determines character by volume.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What are some examples of how to not appear judgmental as a lay witness in court?
Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime).
Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed.
Listen to the questions posed to you, so that you know what information is being elicited from you.
Simply answer questions, and answer questions simply.
Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.”
Do not, do not, do not try to answer yes/no questions with rambling stories.
Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.”
Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What percentage of people lie while under oath in a courtroom, and how often does someone get prosecuted for perjury?
Re: What percentage of people lie under oath in a courtroom:
If anyone knows this, I don’t know who he/she/they is/are.
If such statistics could accurately be obtained, I don’t know how they could be.
As with so many things, what constitutes “a lie” is not as cut and dried as it may seem, even to intellectual people.
If accurate statistics do exist, I’m sure most in the legal system don’t want anyone to know about them because I’d bet that if such statistics exist they are not flattering to the legal system.
I’m not sure how much we can blame the courts for “failing” to catch lies, however, given that no one is infallible and nobody is capable of detecting lies more than roughly 50% of the time*
Re: How often someone who committed perjury is prosecuted for perjury:
What are some examples of how to not appear judgmental (or worse) as a lay witness in court?
Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime).
Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed.
Listen to the questions posed to you, so that you know what information is being elicited from you.
Simply answer questions, and answer questions simply.
Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.”
Do not, do not, do not try to answer yes/no questions with rambling stories.
Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.”
Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool.
First, whether you “truly believe” something or “find it hard to believe,” testifying to something you believe or don’t believe, as opposed to testifying as to something you know, is the first and biggest problem.
Testifying about something you believe (but do not know) is inadmissible testimony. Testifying based upon belief (as opposed to personal knowledge)—whether you testify that you “believe” or “don’t believe” a thing to be true, is known in legal parlance as “speculative” and speculative testimony is objectionable and inadmissible. Speculation is no different than guessing, and it would be frightening unfair to decide a case based upon beliefs, instead of based upon facts.
Second, and somewhat ironically, trying to qualify or bolster your statement to make it more believable may have the opposite effect. Adding qualifiers to your testimony may raise the question as to why you would add them. For example, if you were to answer a question with “To be honest, I do(n’t) know,” use of the phrase “to be honest” is unnecessary. So, one could (could, not must, but could) infer that someone who starts a statement with “to be honest” may often answer questions dishonestly as a general matter, which is why the person distinguishes between when he/she speaks honestly and when he/she does not. So why introduce the doubt as to your credibility at all when there is no need to do so? Better to say merely “I don’t know” and “yes” and “no” than to say, “To be honest, I do(n’t) know” or “To tell the truth, I do(n’t) know”.
Many people have the linguistic tic or affectation of responding to questions with the phrase “I believe” when in fact such people are not guessing or speculating but know. Imagine a situation where when the witness left the office on a particular day is a crucial fact to be established. Imagine that the witness knows precisely when he/she left the office that day, i.e., 5:15 p.m. When such a person is testifying and says, in response to the question as to what time he/she left the office at the end of the day, “I believe I left the office at 5:15 p.m.,” then the witness is needlessly confusing the judge and/or jury. Saying, “I believe” before making a statement of fact changes that statement of fact into a statement of speculation, a guess.
Utah Family Law, LC | divorceutah.com | 801-466-9277