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Tag: child witness

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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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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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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I Am 14 and I Want to Live With My Dad. My Parents Have Shared Custody, but My Mom Wants to Keep Me Her Alone (And She’s Not a Good Person). How Do I Stay With My Father Full Time?

I will answer this question in the context of Utah law because I am licensed as an attorney and practice divorce and family law in the state of Utah.

For the typical child in your situation, i.e., one who wants to obtain a modified order from the court changes the award of child custody from one parent to another, there is precious little that the child can do to affect this kind of change.

In fairness, there are some good policy reasons for why this situation arises. For example:

  • Young children often have poor judgment and may not know whether residing primarily with the parent the children wants to reside is in the child’s best interest.

–   A 9-year-old child may say he/she wants to live with a particular parent not because that parent is a fit parent but just the opposite, i.e., doesn’t ensure the child completes homework, chores, doesn’t ensure the child practices good hygiene, feeds the child junk for meals, imposes no discipline, etc.

–   A tween-age or teen-age child may say he/she wants to live with a particular parent not because that parent is a fit parent but because that parent lets the child run wild, skip school, drink, smoke, take drugs, be sexually active, etc.

  • Many young children can be too easily manipulated and/or intimidated into saying that they want what they don’t really want by way of the custody and parent-time schedule.
  • Some feel that seeking the input of children on the subject of the child custody and parent-time awards “traumatizes” (this word is grossly overused in family law) children by placing them in a position where they must favor or choose one parent over another.

These are clearly factors worth carefully considering if and when a child objects to residing with a particular parent or objects to a particular custody or parent-time schedule. But too often courts invoke these factors as a reason to utterly silence and to completely ignore anything a child has to say on. Why?

Is it because all minor children are clearly unable to be taken seriously because of their status as minor children? Obviously not. While some children may be too young or too immature to have sound bases for, or to make sound arguments for, their custodial preferences, plenty of children are more than sufficiently intelligent and mature and responsible to be credible witnesses on their own behalf. And we’ll never know whether a child is a credible or an incredible witness if we don’t inquire with the child first. Courts reject the testimony of lying and incompetent witnesses all the time (as well they should), yet many courts reject a child’s testimony without giving the child a chance to speak on the grounds that they might lie, that they might be coached, and/or that they might be too stupid or naïve to be taken seriously. That’s no different than convicting a defendant without a fair trial because he “might be” guilty.

Is it because asking a child to express his/her opinions is inherently and irreparably harmful to all children, or even to most children? Obviously not. If a child tells his/her parents and the court, “Don’t ask me to talk about this,” then it may be that honoring that child’s wishes is best. By the same token, however, if a child tells his/her parents and the court something to the effect of:

  • “I have a greater stake in the child custody and parent-time awards than anyone else involved in this case.”
  • “I have experiences, observations, opinions, and desires that deserve to be considered before the court makes these decisions that will affect my life for years to come as a youth and throughout my life as an adult.”

So why do some (most, though not all) courts refuse to hear from children about their custodial preferences and the reasons for those preferences? Why do some courts muzzle the children from the outset? Why do they refuse to weigh the credibility and evidentiary value of what the children who want to be heard have to say? In my opinion, it’s laziness disguised as “prudence” and “compassion”.

So, what does a child who wants and deserves a change of custody do? This may sound radical, but it’s really not: get your own attorney to help you. That’s the legal way to do it. And it’s easier said than done. You’ll be excoriated and mocked for trying. You may even be threatened. Be prepared for all this. There are all kinds of extralegal “self-help” methods that are easier and cheap or free by comparison, but that has never been an excuse to break the rules (unless the rules are inherently unfair or administered unfairly). I encourage children in your situation to work through the system even when it’s organized and administered to work against you.

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

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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 | divorceutah.com | 801-466-9277

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