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Tag: interviewing children

What’s the benefit of having no record of the child’s interview?

What’s the benefit of having no record of the child’s interview?

This post is the eleventh 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 private guardians ad litem work diligently and find a lot of useful information, there is no way to know that because they are not required to furnish any proof to verify the quality of their work and opinions. And so, when guardians ad litem say that they don’t tell us much, if anything, about what the child said, and refuse to provide of the evidence upon which they base their recommendations, but instead merely make a recommendation as to what is in the child’s best interest, the evidentiary basis for those recommendations, the factual basis in the record, is literally non-existent. What verifiable proof of anything pertaining to a child’s best interest when it comes to custody and parent time does a GAL bring to the table? Literally nothing.

Why should we take the unsubstantiated word of the GAL over the word of the child directly stated to the judge in an on the record interview with the judge? I do not see how a GAL can represent a child when there is no way to tell whether the GAL has done good/adequate/preponderance of evidence work or any work at all. The GAL’s work and the child’s interview(s) are not made on the record, so we have no idea what was asked of the child or what the child said in response. The GAL is not subject to discovery, so any ostensible evidence upon which the GAL claims to have based her analysis and recommendations will not exist as a matter of court record. The court literally takes on faith what the GAL recommends, if the court decides to believe anything the GAL says. I ask you: why I go through any of this rigmarole when the judge can interview the children directly, without any second or third hand intermediaries, far more quickly, accurately, particularly, and inexpensively than a GAL or custody evaluator?

I have never witnessed a private guardian ad litem meet or speak with the children for multiple times or for significant periods of time (nor am I aware of the need for this). Even if they did so, how would we ever know? None of their conversation(s) is/are made part of the court’s record. And even if a guardian ad litem and/or custody evaluator were to spend hours speaking with the child, attending the child’s activities, becoming intimately acquainted with the child circumstances, feelings and needs, neither the parents nor the court will ever know this because A) neither the guardian ad litem nor the custody evaluator is required to record interviews with the children, will never really know what they were asked or what they said in response and B) the judge will never speak with the child to verify whether what the guardian ad litem and/or custody evaluator reports is true. I do not know why anybody believes this is an acceptable way to engage in fact-finding, especially in court proceedings. No one has yet convincingly explained why to me, and I’ve asked around a lot.

I’ve heard guardians ad litem claim to have spoken to collateral sources, but how would we know if they ever did or what they asked or what they were told? No record is made of any of their alleged actions, no discovery can be conducted into who these alleged collateral contacts were or what they actually said to the guardian ad litem. In most cases, the guardian ad litem doesn’t even identify specially who he or she spoke with, and even if these collateral sources were specifically identified, we have no record of the conversation between the GAL and the collateral sources. And by the time you learn who the collateral sources are, the guardian ad litem is already made his or her report to the court, so you can’t cross-examine any of the alleged collateral sources the Guardian ad litem claims to have interviewed.

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

 

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Do GALs or custody evaluators do a better job of interviewing children than judges do?

This post is the tenth 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.

But do GALs or custody evaluators do a better job of interviewing children than judges do?

When the “judges interviewing children harms children” argument is finally abandoned by those who acknowledge it’s a silly and patently invalid argument, the next argument to which some cleaning in their efforts to prevent judges from talking to children directly is this one: GAL’s and/or custody evaluators develop a much deeper understanding of the child circumstances, needs, and desires than would a judge interviewing a child. But a guardian ad litem does not spend that much time learning about a child, his parents, or his environment, and does not establish an especially trusting or otherwise meaningful relationship with the child either. I’ve talked with GALs and custody evaluators and with people who had them appointed to speak to them as children; the guardian and/or custody evaluator may have spoken to them for an hour or so. No more than the amount of time a judge could and should spend speaking to a child as well. To assert that guardians ad litem and/or custody evaluators do a better job of interviewing children than a judge can because GALs inherently care more or put more effort or time into it is demonstrably false.

First, if there are any private guardians ad litem out there who spend more than an hour or so talking to their child clients before going before the court and making recommendations based upon the interview with the child, I don’t know who they are. I have never had a guardian ad litem do that in the cases I’ve handled. And if any of you claim that you generally spend or need to spend more than an hour or so interviewing the child, please provide some independently verifiable proof.

I have never witnessed a private guardian ad litem meet or speak with the children multiple times. Even if they did, how would we ever know? None of their conversation(s) is/are made part of the court’s record.

How could a GAL speak with the parents (unless the parents are proceeding pro se) without violating the rule against communicating with a represented party? On the extraordinarily rare occasion that the guardian ad litem has sought permission to speak with my client, the conversation has been brief and not in depth. And in a way that doesn’t come as a surprise. The guardian ad litem doesn’t speak for the parents. The parents can do that for themselves. Come to think of it, except where child is too young to communicate effectively, children don’t need a guardian ad litem or a custody evaluator to speak for them either. They have their own voice and should be permitted to voice their experiences, observations, feelings, concerns, opinions, needs, and desires by themselves, in their own words, unfiltered and unadulterated. But what do I know?

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

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