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Does having the judge interview the children traumatize the children?

Does having the judge interview the children traumatize the children?


This post is the second in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.


Does having the judge interview the children traumatize the children? You may have heard the argument along the lines of, “Having a judge interview children is tantamount to child abuse.” If you haven’t heard it yet, all you have to do to make that happen is propose that the judge interview your children. The same people who claim judges interviewing kids harms kids will, with a straight face, claim that having a child interviewed by a guardian ad litem or custody evaluator is in some way functionally and/or effectively different from and better than being interviewed by a judge. Really?


I submit to you that virtually no child knows or cares about the difference between a judge or a guardian ad litem or psychologist interviewing a child. And while I will be among the first to admit that a mental health professional like an LCSW or psychologist may generally be a bit more skilled than the average judge at interviewing children about child custody issues, I submit that the difference is not so great as to justify spending $3,000 to $10,000 or more on a custody evaluation with an LCSW or psychologist, especially when the custody evaluation interview, like the interviews with the GAL, are not on the record, which means there’s no way of knowing how well the interviews were conducted or what said or not said by the child, if in fact the interviews ever took place at all.

Contrastingly, an interview conducted by the judge, as authorized by the Utah legislature/Utah Code § 30-3-10(5), is free of charge to the parents, takes far less time than an interview with a custody evaluator, would take about as much time as an interview would with a GAL, is directly from the child witness’s mouth to the judge’s ear (that way there are no hearsay or other second hand information concerns), and is on the record to ensure that there is no question as to how well the interview was conducted, what the child was and was not asked, and what the child did and did not say in response.


Utah Family Law, LC | | 801-466-9277

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Would a child deal better with constantly fighting or divorced parents?

“Do you think a child would deal better with constantly fighting parents or divorced parents?” I have been asked to answer this question, but as a divorce lawyer (not someone who is divorced himself), I did not want to answer it without also getting the input of divorced parents.

I put the question out on Facebook and between me those divorced parents, here are our various answers.

One parent noted:

“I think it’d be situational. Totally situational. If, for example, one of the parents has borderline personality disorder or narcissistic personality disorder and would alienate the children post-divorce, it’s better to stay married.

If, however, for example, the parents are both otherwise reasonable people who just can’t get along with each other, but can set their differences aside and put their kids first post-divorce, then a divorce might be a better option after other options have failed (such as counseling, etc.).

The problem when dealing with a borderline or narcissist: the reasonable/targeted parent often doesn’t know who they’re really dealing with until it’s too late.”

Another parent saw it this way:

“The kids are better off if their parents get divorced. If a parent is staying together for the kids, the marriage will end up failing anyway, and then the kids will just say that you were a spineless coward. Another reason is staying just prolongs pain. Life goes fast. No sense wasting any minute in suffering.”

The third parent stated:

“Short term, yes. In my situation, my older son was relieved when his mother left and specifically noted how peaceful our home felt without her there. But my younger son, who was barely 3, was affected in ways that still cause problems for him 10 years. That being said, I think it’s a little bit of a copout for a couple (barring repeated infidelity or actual abuse) to use this as an excuse not to grow the hell up and go through whatever work it takes to make the marriage they chose to enter into work and provide a stable, loving home for the children they chose to create.

When my ex and I were dating, she specially noted how hard it was when her parents divorced, and the struggles she went through because of it. But once she started feeling like she wanted out, she often mentioned how ‘happy’ she was once her parents divorced and her dad was out of the picture. It was night and day, so I am biased in feeling like that particular line of thinking can be an excuse, rather than a legitimate reason.”

Finally, here is my two cents’ worth:

I would not wish a divorce on my worst enemy. With extraordinarily rare exception, divorce is miserable for every member of the family, especially the children.

More than one person has told me that if he or she had known what divorce would do them and to their kids they might have stayed married or at least tried everything humanly possible to make the marriage work before getting a divorce.

Clearly, you don’t need to worry about trying to “save” a marriage in which there is serious physical violence. Yes, I said serious physical violence against you or the children. If, however, you want to claim you’re a domestic violence victim because your spouse pushed you of the way to get out the bedroom door you were blocking, you’re not abused, you’re a bit of a jerk and a bit of a wuss. Rather than pouring your energy into claiming victim status, work on yourself and work on your marriage.

Marriage is hard work. Even for two normal, loving, peaceful people, marriage is hard. And still worth it, if you do the work required to make your marriage a good one. If you’ve given all you can but your spouse won’t meet you half way, you will not regret giving your marriage every last reasonable effort and chance before you file for divorce. A clear conscience helps ensure clear judgment when you make the choice to divorce.

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

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Can a mother keeping the children from the father work against in custody litigation?

Can a mother not allowing the father to see his child without reason work against her in litigation for joint custody? Would the father having children from another relationship living in the home as well impact the decision for joint custody?

Oddly enough, when a mother does not “allow” the father to see the couple’s child without reason, it can work against her in litigation for joint custody, but rarely works against her nearly as much as you might imagine.

Even though societal and court bias against fathers in child custody cases is waning, there is in my experience still an unbelievable level of bias against fathers generally in child custody cases. The child custody award is, with surprisingly rare exception even nowadays, still the mother’s to lose.

There is often an unwritten but undeniable presumption that mothers:

  • are the children’s primary caregivers of, even when both parents have jobs outside the home and even when the mother works outside the home and the father does not! I’ve witnessed it personally myself as an attorney;
  • mothers are just generally better parents than fathers; and
  • fathers who seek sole or joint custody of their children do so only to avoid having to pay child support (yet virtually no one claims that mothers don’t seek sole custody for the purpose of receiving maximum child support)

This means essentially that for every “point” favoring an award of custody to the mother the father has to score 3 to 5 points of his own just to stay in the running for a joint custody award. It’s patently unfair and patently sexist.

If a father in a pending child custody case was in a previous case awarded custody of other children from another relationship can do nothing but have a positive impact on his efforts to seek joint custody of this other children, so long as the father can show that he is exercising custody properly and for the benefit of the children. It may not be enough to secure an award of joint custody, but it will help (unless the court engages in tortured logic—which I’ve seen before—and concludes that because the father has sole custody of his children from a previous relationship that he won’t have the time and resources and attention to care for his other children the same way).

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

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Should I be nice to my spouse during a divorce?

That depends on what you mean by “nice”.

Do you mean “with kindness”? Not necessarily kindness, but certainly decency. You are morally obligated to treat your spouse with decency, but you don’t have to go out of your way to make the spouse you are divorcing happy. You don’t have to capitulate to your spouse’s unfair or unreasonable demands.

Do you mean “with honesty and fairness”? If so, then yes: you are morally obligated to be honest and fair with everyone, but again aren’t obligated to capitulate to your spouse’s unfair or unreasonable demands, nor are you in any way obligated to tolerate being treated unfairly by your spouse.

Do you mean “forgiving”? If so, then yes: you are morally obligated to forgive your spouse for the wrong’s he/she did you, but forgiveness does not mean “acceptance”. Forgiving the people who have deceived or betrayed me in the past does not require me to trust them in the future. I forgive them so that I don’t dwell on the hurt done to me, so that I don’t let the injury continue to harm me, so that the one who did me wrong is shown the mercy needed to give him/her the best opportunity to change for the better without eternal regret or shame hampering the repentance process.

Fighting fire with fire will only intensify the pain and misery. Being the better man (or woman, as the case may be), living up to your virtuous values and standards of conduct is the only way to move on with peace and happiness (and you can get back there). Easier said than done, yes, but the only way.

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

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Why are public defenders often worse than private lawyers?

Public defenders are paid by the state to represent indigent people. Indigent people are generally among the most powerless and helpless in society. Most people accused of crimes are guilty (not all, but most). When you combine these facts with the fact that public defenders are not paid well to begin with and are overworked on top of that, you can see how easy it is for a public defender to start phoning it in and to keep phoning it in. Not every public defender does this. Some public defenders are exceptionally inspiring models of long-suffering integrity (but that’s what makes an exceptional).

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

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After a divorce, is joint residential custody better or worse for the children?

Let’s indulge an analogy to answer this question.

Is sugar good for you, or bad for you? It depends upon the circumstances. An occasional slice of cake or pie is a safe and pleasant way to enjoy sugar. ‘Nothing wrong with that. Eating so much sugar that your teeth rot and you pack on 30 unneeded pounds is irresponsible and hazardous to your health. ‘Nothing good about that. Yes, you have the right to ruin your health with too much sugar, but that does not mean you have the right to expect everyone around you to endorse or accommodate your irresponsible lifestyle.

So is joint residential custody better or worse for the children? It depends on the joint residential custody circumstances. Assuming there’s nothing emotionally or psychologically off about a child, when both parents are fit (not abusive or neglectful and physically and psychologically able to care for children), loving and supportive, there to provide personal care and attention, have residences that are safe and hygienic, and can at least tolerate the exercise of joint custody with each other, joint residential custody is unquestionably best for children (the research is copious and only getting clearer). When one of the parents is unfit, disengaged, and lives in a pig sty and/or in his/her car, joint residential custody would clearly not be in a child’s best interest.

Parental rights are fundamental, God-given, human rights. But they are not a parent’s absolute inviolable rights. If a parent is not minimally fit to exercise custody of a child, the law provides that such a parent’s parental rights can be infringed, restricted, even terminated. This is why a court can award sole custody of children, if it finds that the parents are not both fit to exercise joint custody and/or if it finds that joint custody would not subserve the child’s best interest.

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


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How did having children change the way you think about adults?

Adults who marry responsibly and have children responsibly are better adults than those who aren’t. There is generally more to them. If you let them, marriage and parenthood cannot help but expose you to situations that challenge and mold you into a different and better person. One who is less self-centered, more empathetic, understanding, and forgiving. You live a broader and richer life when you add marriage and children to it. Yes, marriage and parenthood will break your heart, but having the corners knocked off makes us more well-rounded in the long run. I can’t imagine how empty my life would be (whether I knew it or not) had I not had my wife and children in my life. I am so grateful for them (and they are grateful for me).

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

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