Tag: probative

What does a judge ask a child in a custody case?

In Utah (where I practice divorce and child custody law) the answer is: it’s almost impossible to say. Why?

  1. For reasons that I assert I can demonstrate are not highly rational*, the majority of judges are extremely reluctant to question children on the subject of the child custody award.
  2. Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
  3. The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.

*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:

  1. A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
  2. B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
  3. C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.

Here is why I assert that such reasons are not rational:

1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.

Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.

2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.

3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.

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

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Evidence: What will the court admit, and why (relevance vs. materiality)?

The decision of whether to admit or exclude evidence in a hearing or trial belongs to your commissioner or judge. Even on appeal, the evidentiary decisions of the commissioner or judge will only be overturned if “abuse of discretion” is found.  And even if abuse of discretion is found, it still will not result in reversal of the case, unless a significant right of one of the parties was affected through the incorrect inclusion or exclusion of evidence. Understanding what admissible evidence is will help you identify the kind of evidence you need to present at trial, as well as what evidence that should not be admitted at trial.

To be admissible, evidence must be both “material” and relevant. Evidence is material if it helps prove an element of a claim or defense that needs to be established in the case. So, the evidence must relate to proving or disproving the existence of essential elements of the case.

Evidence is relevant if it is two things: 1) material; and 2) tends to make a fact more or less probable (i.e. “provable”) than it would be without the evidence. Evidence is relevant if tends to establish the truth of falsity of an alleged fact. [i]

Here’s an example: imagine a divorce case in which one parent wants to present evidence that he/she attended every one of their child’s baseball games. The judge would have to determine: 1) is it evidence of a fact material to an issue that needs to be resolved in court, such as who should get custody of a child)?; and 2) does the evidence tend to establish the existence or nonexistence of that fact?  If the evidence that the parent attended every one of the child’s baseball games is being used to show that the parent is or is not in fact worthy of being awarded custody of a child, it is likely that the judge will admit the evidence as relevant.

Keep in mind that while judges must make a careful determination of both the relevance and the materiality of evidence, often they are required to make a quick decision in the wake of an objection at trial.  If there is a particularly important piece of evidence that you would like to ensure is included or excluded from evidence, a pre-trial “motion in limine” may be a good option.  This type of motion allows the judge to consider the evidence and to make a ruling on its admissibility before the trial itself begins.

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


[i] See Utah Rules of Evidence 401:

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a)   it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b)   the fact is of consequence in determining the action.

2011 Advisory Committee Note. – The language of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. This rule is the federal rule, verbatim.


This rule is the federal rule, verbatim, and is comparable in substance to Rule 1(2), Utah Rules of Evidence (1971), but the former rule defined relevant evidence as that having a tendency to prove or disprove the existence of any “material fact.” Avoiding the use of the term “material fact” accords with the application given to former Rule 1(2) by the Utah Supreme Court. State v. Peterson, 560 P.2d 1387 (Utah 1977).

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