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Tag: GAL

Is There Anything I Can Do for Winning Custody After the Gal Report Is Favoring My Ex? Is Paying More to My Attorneys Worth It or No?

After you ask, “Is there anything I can do for winning custody after the GAL report is favoring my ex? Is paying more to my attorneys worth it or no?,” then you need to ask these questions:

Is the GAL’s report favoring my ex accurate? Otherwise stated, “Am I unfit to be awarded custody (whether that be sole custody or joint custody or equal custody?” If you are unfit to be awarded the custody you want or any kind of custody, you may have different and bigger obstacles than the GAL’s report standing in your way.

If the GAL’s report favoring you ex is inaccurate and/or biased, are the inaccuracies and biases significant and relevant?

If so, can you prove it? Otherwise stated, do you have admissible evidence that conclusively establishes the the GAL’s report is inaccurate and/or biased? If you have evidence of some minor or irrelevant inaccuracies, that likely won’t be enough to persuade the court to disregard the report and recommendations of the GAL. If, however, you can show the GAL is incompetent, did shoddy work, and/or indulged personal biases irrespective of the facts, that might (might) be enough to get the report thrown out or at least to get the court to give the report less credence.

So, in response to the question of whether it is worth it to pay your attorneys more money in an effort to discredit the GAL’s reports and recommendations, if you conclude (honestly) that 1) you are fit to be awarded the custody award you seek AND you can prove it; 2) the GAL’s report and recommendations are significantly inaccurate and/or biased AND you can prove it; 3) you have the money and a good attorney necessary to make a winning presentation to the court; AND 4) you conclude it’s worth risking the money and effort to make the attempt, then the answer is yes.

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

https://www.quora.com/Is-there-anything-I-can-do-for-winning-custody-after-the-GAL-report-is-favoring-my-ex-Is-paying-more-to-my-attorneys-worth-it-or-no/answer/Eric-Johnson-311

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Is appointing a guardian ad litem helpful in custody cases?

Is appointing a guardian ad litem a positive tool to help with custody cases? 

[I will respond to your question based upon my experience with guardians ad litem in Utah, where I practice divorce and family law. Each jurisdiction will have a different system governing the appointment, use, and powers of a guardian ad litem, so understand that in reading my response.] 

In my professional opinion, rarely. 

It is not worth the risk, in my experience. There is too much of a chance of the GAL being more of a detriment than benefit to anyone. What do I mean? 

Nobody and no thing is perfect, but as long as you meet certain minimal, essential standards, you’ll stay out of jail and stay employed. As long as institutions meet certain minimal, essential standards will do and continue to do more good than harm.  

But there are many things that sound good in concept, yet just clearly don’t work well in practice. The guardian ad litem (GAL) is such a thing.  

So why do GAL programs still exist? Why are GAL’s appointed so frequently still? Two big reasons stand out in my mind: 

1) In my experience, courts like appointing GAL’s to relieve themselves of some of the fact-finding burdens. That’s not an inherently bad idea, if a GAL could be counted on to bear those fact-finding burdens competently. But they usually don’t. 

and  

2) The idea of a child having his/her own attorney to “stand in the child’s shoes” and “give the child a voice” sounds noble, perhaps even crucial. And I am sure that if one looked hard enough, one could find a GAL who accomplishes such objectives. In my experience, however, GAL’s are too afraid and/or apathetic to do their jobs well and are incentivized (or dis-incentivized, as the case may be) by the legal system to do minimal, mediocre work yielding equivocal results that keep the GAL out of hot water. And that’s the best I can say about GALs. Worse, most GAL’s are among the least competent attorneys and are often motivated by self interest to recommend what they subjectively want done, as opposed to where the evidence points. In my experience, the GALs don’t perform with due diligence or provide insightful, impartial analysis. Instead, they base their ostensible findings and recommendations upon personal biases, agendas, and lazy (but safe-sounding) assumptions. I find many (not all, but many) GALs to be extremely petty and judgmental. Be or do something irrelevant, but that the GAL disapproves of (like holding certain political, religious, or other views contrary to those of the GAL), and don’t be surprised if the GAL’s recommendations aren’t in your favor, regardless of the actual factual and legal merits of your case. 

——— 

When a proposal is made to appoint a GAL, I oppose it. There are far better, far more reliable, less time-consuming, and less expensive ways to obtain accurate, useful information that a GAL is intended to produce, but rarely, if ever, does produce. There is no need to appoint a third party to “give the child a voice,” when the child can speak for himself/herself. If the child is too young to talk or to testify competently, there is little that a GAL could provide of any substantive value anyway. 

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

https://www.quora.com/Is-appointing-a-guardian-ad-litem-a-positive-tool-to-help-with-custody-cases/answer/Eric-Johnson-311  

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GALs/custody evaluators waste money/time compared to judge interview

GALs and custody evaluators waste too much money and time, and can never provide the same accuracy as a judge’s direct interview of the child.

This post is the fifteenth 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.

Even if guardians ad litem and custody evaluators always tell the truth (and there’s no way for us to know that, especially when they are not required to back their claims with independently verifiable evidence), how would that have any impact on whether children tell the truth to guardians ad litem and/or to custody evaluators? And is there any proof that children would lie more or less to judges than to guardians ad litem and/or custody evaluators? If so, I’m not aware of any such proof. It would be a cheap shot to call my critiques of the use of guardians ad litem and custody evaluators as being “skeptical” of their use when there is no basis for presuming that the use of guardians ad litem and/or custody evaluators is an obvious good or obviously better than having the judge speak directly to the children. Guardians ad litem and custody evaluators are way too expensive, waste too much time, and can never provide the same degree of accuracy as a judge’s interview directly with the child. That’s indisputable. Those who try to claim otherwise usually do so by relying on fallacious ad hominem and appeals to authority arguments, as well as outright lies.

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

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I’ve never seen a GAL or custody evaluator add value equal to the fees they charge

I’ve never seen a GAL or custody evaluator add value equal to the fees they charge

This post is the fourteenth 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.

I’ve never seen a guardian ad litem or custody evaluator add value to the child custody analysis that is equal to what the GAL and/or custody evaluator charged in fees, and here is why:

First and most glaring of all, there is no way to know if the guardian ad litem has done anything (let alone done anything well or poorly) because the guardian ad litem does not have to make a record and is not subject to discovery. The guardian ad litem could literally do nothing and lie through his or her teeth to the court and there is be no way discover and expose it except by dumb luck. Custody evaluators, as opposed to guardians ad litem, can be subject to some discovery, but rarely is a custody evaluator willing to part with his or her file contents in response to a discovery request. It is often very difficult to get a custody evaluator to comply with the discovery request, if a discovery request is made.

Back to the problems of guardians ad litem specifically. Because the guardian ad litem is not required to furnish the court with any proof in support of any alleged facts that underlie the GAL’s assertions and recommendations, the guardian ad litem’s assertions, analysis, and recommendations literally have the same evidentiary value as any other person’s bald claims.

If there are devoted guardians ad litem out there becoming intimately and accurately acquainted with their child clients’ circumstances and feelings AND providing verifiably accurate and credible factual information to the court, as well as sound analysis based upon and citing to such evidence, I have yet to witness that personally. If anyone viewing this has had a different experience that can be documented and verified, I plead with you to share it with me. I must warn you: even if you were to produce such of guardian ad litem, I would ask whether what the guardian ad litem charged for such a thing justify the expense when the child could have been interviewed directly by the judge instead.

Third, even if we were to grant that a guardian ad litem somehow furnished accurate evidence and analysis—without the basis of that evidence and analysis being subject to discovery and verification and without having to make a record of what the children are asked and what they say in response—the amount and quality of such evidence and analysis still does not justify the time and money consumed by the appointment of a guardian ad litem compared to the much lower cost, much shorter consumption of time, and greater accuracy of a judge’s on the record interview of the child.

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

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GAL recommendations are nowhere close to being the best way

GAL recommendations are nowhere close to being the best way to determining the child’s best interest.

This post is the thirteenth 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.

If a guardian ad litem claims to tell the court what a child said, that violates the rule against hearsay and violates the privilege against disclosure of attorney client communications.

When I point out to the court a guardian ad litem’s attempts to proffer hearsay statements, I am either ignored or told that there is a special exception for guardians ad litem (which is not true). When I try to invoke Utah rule of evidence 806 to cross examine a child on the hearsay statements (to determine whether what the child is alleged to have said is actually what the child said), I’m either giving an emperor’s new clothes kind of denial or just ignored. Now you understand that if the judge would question the child directly, there would be little to no need to cross-examine the child in the first place (if the judge questioned the children well, for example). Likewise, if a judge would question a child directly there would rarely, if ever, be a need to appoint a guardian ad litem or custody evaluator for the child’s benefit either. I do not understand why we have guardians ad litem or custody evaluators serve the purpose of “giving the child a voice” when the child has his or her own voice and is perfectly capable of using it, especially in articulating and attempting to advance the child’s own best interest by speaking directly with the court as to the child’s experiences, observations, ceilings, concerns, opinions and desires, without the child’s words being parsed or filtered or misconstrued by second and third hand intermediaries.

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

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Why Not Have the Judge Interview the Children About Child Custody?

Why Not Have the Judge Interview the Children About Child Custody?

Why Appoint a GAL or Custody Evaluator When the Judge Can Interview the Children?

This post is the first 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.

I can imagine a case in which ordering a custody evaluation and/or appointment of a guardian ad litem may be warranted, even necessary, but generally guardians ad litem and custody evaluations are an obscene waste of time and money and effort. They don’t just fail to justify their costs; they spectacularly fail to justify their costs. Instead, in the overwhelming majority of child custody disputes, the court can and should interview the children directly. The Utah Code expressly provides for this. Section 30-3-10(5), to be exact. Yet in 24 years of practice I have never had a judge agree to interview a child in a child custody dispute. Not once. And I submit that’s ridiculous. In the posts that follow we will discuss why judges interviewing children is clearly superior to appointing guardians ad litem and/or custody evaluations for the vast majority of child custody dispute cases.

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

 

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There is nothing a GAL could learn how to do that a judge cannot also learn how to do equally well.

There is nothing a GAL could learn how to do that a judge cannot also learn how to do equally well.

This post is the ninth 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.

There is nothing a guardian ad litem could learn how to do and then do that a judge cannot also learn how to do equally well and do equally well.

Some people try to make a (false) distinction between the effect of a judge questioning a child and the effect of a guardian ad litem questioning a child.

Up until a certain age, we all know that children have no idea what the difference between a judge and a lawyer is; therefore, if they’re not aware of any difference between the judge questioning them and a GAL questioning them, the effects of the questioning cannot be any more traumatic when the judge conducts the interview then when a guardian ad litem conducts the interview.

But let’s assume that we’re dealing with the interview of a child who is 14 or 15 years old or older. At that age, one might expect a child to know the difference between a judge and a lawyer. The child might even realize that the judge is the one who ultimately makes the child custody and parent-time decisions. So what?

If a guardian ad litem sat down with a child and told the 14+ years old child, “Hi, I’m Eric, and I’ve been asked to help you, your parents, and the court find out what you want and need and what’s best for you and your family when it comes to where you and your siblings live after your parents get divorced. I’d like to talk about that with you now for the next hour or so,” how would the effect on the child be any different if a judge sat down with that same child and said essentially the same thing? The answer is it clearly would not be any different merely because the one asking the questions is a judge instead of a GAL.

There is nothing about judges talking to children that is inherently harmful, just as there is nothing about guardians ad litem talking to children that inherently has a beneficial or benign effect on the child.

Claims that judges questioning children does children harm require us to presume that would be because of their status as judges, because all judges are insensitive and incompetent questioners, or both. Obviously, neither premise is true. For it were shown to be true that a judge is insensitive and/or incompetent, then the problem wouldn’t be whether the judge interviews the children, but whether the judge can be trusted to act in the best interest of the children in the first place.

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

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If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, why won’t the judge interview the child?

If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, why won’t the judge interview the child?

 

This post is the seventh 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.

 

I respectfully submit that claiming a child will know or “feel” a painful or harmful difference between an interview conducted by a judge as opposed to an interview by a GAL and/or custody evaluator is patently without merit. There is no independently verifiable proof for the claim that a judge interviewing a child on the subject of child custody issues inherently harms a child or exposes a child to a risk of harm. And when you think about, the very idea that a judge talking to a child will cause the child some kind of unwarranted harm—if indeed any real harm at all—is silly on its face.

 

If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, what concerns the child, and what the child’s opinions and desires are, the idea that the best way to do this is through an interview by anyone but the judge is as absurd as it is counterproductive. Worse, to suggest that a guardian ad litem (who got literally a few hours of training in a hotel ballroom seminar and YouTube) or mental health professional thousands of dollars and take weeks or months to provide a milquetoast report and recommendations is indefensible.

 

You may ask why custody evaluators analyses and recommendations are usually so vague and timid. It’s a fair and crucial question. It’s out of fear of being reported to DOPL or sued for malpractice by the parent against whom the evaluator may make adverse recommendations. Knowing this, it is impossible to justify why so many judges and lawyers are so resistant to a judge conducting the interview of the child directly and on the record.

 

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

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Which Is Better: spending thousands on GAL/custody evaluator or $0 on a judge interview?

Which Is Better: spending thousands on GAL/custody evaluator or $0 on a judge interview?

How could it be better to spend thousands on a GAL or custody evaluator when the judge can interview children free of charge?

This post is the sixth 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.

How could it be better to spend thousands on a GAL or custody evaluator when the judge can interview children free of charge? In 24 years of law practice, I have never had a judge agree to interview children in lieu of having a private guardian ad litem appointed and/or having a custody evaluator appointed. I submit that it’s not because my arguments lack merit. Indeed, I have yet to encounter a valid, let alone a compelling, argument for why it is better to spend thousands, even tens of thousands, on guardians ad litem and or custody evaluators when the judge can interview children directly, free of charge (as opposed to obtaining so-called “evidence” via court-sponsored hearsay in the form of second, and often third hand information of interviews with the children that allegedly took place but were never made part of the court’s record). There are two main excuses one will hear for why judges should not interview children: 1) judges interviewing children is inherently traumatic for children and/or “puts them in the middle of their parents’ disputes” and thus unjustifiably traumatizes them too; and 2) judges are not qualified to interview children where guardians ad litem and or custody evaluators, and only guardians had lied them and/or custody evaluators, are qualified to do so. Neither justification holds water, as I have explained and will continue to explain in these videos. If anyone would like to hold a debate on this subject, it would be of benefit to everyone involved in child custody disputes, from the child to the parents to the parent’s respective lawyers to the judge.

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

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Believing Judges Interviewing Children Harms Children Rests on False Premises

This post is the eighth 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.

 

To conclude that judges interviewing children harms them rests on the false premise that judges are insensitive and/or incompetent. There is obviously no inherent difference between having a judge interview a child and having a guardian ad litem interview a child. Lawyers and judges know that there is nothing about a guardian ad litem that is any better or worse than a judge when it comes to ability to question children. Judges are former lawyers, after all.

To conclude that judges who interview children inherently harm, or inherently expose children to undue risks of harm must necessarily rest on the premise that judges who interview children are insensitive and/or incompetent. For all my criticisms of the legal system, I would be lying if I claimed that all or most or even a statistically significant number of judges are too insensitive and too incompetent to question children about child custody issues without harming them any more than an interview conducted by a guardian ad litem or custody evaluator would harm children.

 

If a judge were to claim that his or her ability to question children is worse than a guardian ad litem’s ability to question children because the judge lacked GAL training, then the problem would clearly not lie in the judge’s status as a judge but in a lack of training.

GAL training is a matter of hours, not years or even months. So, the training and skills gap between a trained GAL and an untrained judge could be closed quickly and easily by the judge getting that same GAL training. It wouldn’t even cost the judge any money because the Utah State Office of Guardian ad Litem has offered to provide judges with GAL training free of charge.

 

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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Why Won’t Judges and Commissioners Interview Children?

I recently participated in a hearing before a domestic relations commissioner in which the commissioner refused to interview a child and ordered a guardian ad litem (GAL) appointed, even though 1) the commissioner had the exact same child interview training as what a GAL had and 2) Utah Code § 30-3-10(5)(b)(i) expressly authorizes the judge or commissioner to interview the child. In other words, there was nothing that made the commissioner any less qualified to interview the child than a GAL, but the commissioner refused to interview the child and instead appointed someone else to interview the child and ordered the parties to pay for it. This is the norm in Utah with the overwhelming majority of judges and commissioners assigned to child custody cases in divorce and parentage cases.

So why appoint a GAL? Why not have the court interview the child instead of a GAL? Why incur the costs of having to pay for the appointment of a GAL when the court questioning the child:

  • is free of charge;
  • on the record (guardian ad litem interviews are not on the record and not subject to discovery);
  • does not violate the attorney-client communications privilege;
  • results in direct testimony from child to court, without any intermediary to taint or misreport or misconstrue what questions the child asked and how the child answered them (as opposed to an interview of which there is no record made of the questions asked—and unasked—and the answers given—or not given—followed by recommendations made on the basis of no independently verifiable position; and
  • suffers from no “court-sponsored hearsay” problem because the child is questioned directly by and responds directly to the judge or commissioner on the record.

There are even more good reasons for judges and commissioners to interview children directly. Now of course there will be certain cases in which a child is too young or too fragile to justify having a judge or commissioner interview a child, but I have yet to have anyone explain the logic behind the almost wholesale opposition of courts to directly interviewing children. I cannot find any sense in thinking: “I know that I’m authorized by statute to question the child (and that I either have or can quickly get the same interview training a GAL receives), but I won’t question the child and instead I will have someone else do it, charge the parties to do it, ensure that the questioning (if it takes place at all) is not on the record, have the appointed questioner make recommendations without there being any way to verify whether there is a factual foundation for the recommendations, and I’ll justify all of this by claiming this is in the best interest of the child by claiming (without evidence because there can be no evidence) that somehow a GAL questioning a child does no harm but a judge or commissioner (who the child would not be able to distinguish from a GAL) questioning a child is somehow almost sure to cause a child harm.”

If anyone reading this honestly asserts that appointing a GAL is better than having the child questioned by the court on the record, please explain how, in any substantive way, appointing a GAL is better than having the child questioned by the court on the record.

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

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