Ella Rice: Can I call my child as a witness in court to say where she would like to live?

I’m asked many different questions as a Utah divorce lawyer. This one is not unique. You may want to this about this question again. Do you really want your child to testify as a witness? Do you really want your child to be placed in the position of being made to choose which parent he/she prefers or “loves more”? That kind of thing could really scar some (I emphasize some, not all) children emotionally.

Let’s assume for the sake of this response, however, that you have legitimate and compelling reasons for the child to testify on the subject of the child custody and/or parent-time orders. By way of historical note, few people know that before 1969, the Utah Code provided that children ten years of age “shall have the privilege of selecting the parent to which they will attach themselves.” Not anymore.

Now the Utah Code provisions regarding child testimony on the subject of custody and parent-time (visitation) are found in Utah Code § 30–3–10(1) and read, in pertinent part, as follows:

(e) The court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.
(f) If an interview with a child is conducted by the court pursuant to Subsection (1)(e), the interview shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.

Now you may ask (and if you weren’t thinking of asking, you should), “So how frequently does a Utah court ‘find that an interview with a child is the only method to ascertain the child’s desires regarding custody’?”

The answer is: almost never, and for the reason I stated at the beginning of my response to your question, i.e., the vast majority of judges and commissioners in Utah believe that a child should never be questioned on the subject of his/her desires regarding future custody or parent-time schedules because of concern that placing the child in the position of having to choose could be emotionally agonizing.

While the desire to avoid traumatizing a child emotionally is valid, it is often abused by judges as a convenient excuse not to question children under any circumstances, no matter how compelling (and thus saves time and allows the court greater discretion in deciding the issue, since the child’s testimony never gets heard).

Another valid concern, but one that is also often abused as a convenient excuse for judicial sloth, is whether a child’s testimony is all that credible, given that a child may have been unduly influenced by a parent to say what the parent wants the child to say, rather than what the child honestly observed, feels and desires.

Some judges will dodge a child interview by claiming to be “unqualified” to question a child on the subject of custody and parent-time. To that lame argument I point out that the legislature has clearly expressly deemed the judge qualified to question a child by authorizing the judge by statute to interview the child. Thus, if a judge still feels unqualified, that judge either needs to read up or get trained up to the point of finally feeling qualified or resign from the job of being a judge.

Some judges claim that they can avoid questioning children, yet still solicit their desires by having someone else (such as an attorney appointed for the child—who is called a “guardian ad litem”—or having a social worker or psychologist) interview them and then report that to to judge. But that’s silly. The interview still takes place. The questions still get asked and answered, but they aren’t asked by or heard by the judge directly. There’s a reason we have witnesses testify in the presence of the judge: so that the judge can hear the testimony first-hand and without filtration or bias from a second-hand source, so that the judge can truly ascertain the witness’ credibility. When all a judge does is get testimony through a “child whisperer,” the integrity of the fact-finding process is needlessly undermined.

Additionally, the guardian ad litem and/or psychologist isn’t an expense the court bears; one or both parents have to pay for these people’s “services,” which ends up costing the parents a lot of money, wasting a lot of time, and needlessly raising hearsay concerns. I have no problem with an expert supplementing the evidence when warranted, but at bottom, wholesale delegation of the interview responsibility is passing the buck, pure and simple.

Personally, I don’t see why the overwhelming majority of Utah district court judges are so unwilling to question children on the record on the subject of custody and parent-time. First, children testify in all kinds of court settings without wrecking their lives. Second, it’s not as though the only way to solicit the children’s testimony is by subjecting them to the same kinds of brutal interrogation techniques used with hardened criminals or spies. It’s the children who will be affected most by the child custody and parent-time orders, so I cannot see how an intellectually honest judge could claim that a child’s observations, experiences, feelings, opinions, and desires on the subject are not key to reaching a custody and parent-time order that is in that child’s best interest. Where there’s a will, there’s a way. Fortunately, commissioners and judges in Utah appear to me to be coming around to my way of thinking, albeit slowly and reluctantly.

So if you were hoping to have the judge interview the child to inform the judge of the child’s custody and parent-time preferences, I wouldn’t count on it in Salt Lake, Provo, West Jordan, or Sandy Utah.

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