Many parents feel that nothing they say about custody will mean as much as the judge hearing their child’s opinions. While the laws governing divorce in Utah mean that a judge will never let the child’s preferences be the only guiding factor in a custody decision, the child’s feelings do matter. But how does the judge hear the child’s wishes? Let’s answer some common questions about children testifying in custody trials in Utah.
Can a Child Choose Which Parent They Live with?
Utah judges must make custody decisions based on what is in the child’s best interest. That stipulation covers many elements. The judge can consider the relationship between the child and each parent, the responsibility of the parents, how involved each parent is in the child’s life, any potential negative influences, and more.
A custody decision will always be more complex than asking the child which parent they would like to live with. A child may express a preference to live with the “fun” parent who doesn’t give them a bedtime, requires no chores, and lets them eat candy for dinner every night, but a judge is unlikely to see that as being in the child’s best interest.
A judge will consider the child’s maturity level and cognitive ability when determining how much weight to put on their preferences. The wishes of a 5-year-old child will likely not be given as much credence as those of a 16-year-old minor. The younger child is less able to understand all the implications of the choice or know what is best and healthiest. That doesn’t mean a judge won’t consider the 5-year-old’s wishes at all, but they will mean less than those of a teenager.
Utah law encourages judges to give added weight to the wishes of children at least 14 years old. Those preferences will still not be the only controlling factor in the custody decision.
Will My Child Be Required to Testify?
Under Utah Code 30-3-10, neither parent can require that their child testify. If the judge determines that extenuating circumstances necessitate that they hear testimony from the child, there must be no other reasonable method to get the information they need. In that case, the judge can hear the child’s testimony. When the judge determines the child must testify, they may obtain consent from both parents, but it is not required. If the judge deems it necessary to hear directly from the child about their experiences and preferences, they do not need permission from both parents.
What Does a Child’s Custody Trial Testimony Look Like?
If you’ve watched any legal dramas on TV, you have an idea of what typical testimony looks like. The testifying party walks to the front of the court, swears to tell the truth, and sits in a box next to the judge, taking questions from lawyers. It’s easy to imagine how scary and intimidating that situation might be for a child. The court system understands that wouldn’t be appropriate. Your child’s testimony won’t look like an episode of Law & Order.
If the judge deems it necessary to speak directly with a child in a custody case, the conversation will usually occur in the judge’s chambers, not in open court. A camera will document the conversation. The child will talk with the judge. They will not take questions from the lawyers. In most cases, the lawyers and parents won’t be present, so the child can feel more comfortable expressing their feelings, preferences, and experiences.
Will a Child Have Legal Representation?
In most cases, your child will not have or need legal representation. In divorces where custody is especially contentious, or there are allegations of abuse or neglect, the judge may feel the child needs someone unbiased to look out for their well-being. In that case, a guardian ad litem (GAL) may represent the child. The GAL’s job is to ensure the child’s wishes are conveyed to the court. They also see that the custody process and final custody agreement serve the child’s best interests and that the child’s rights are protected.
Typically, the parents, their child custody lawyers, and the judge can ensure the child’s interests are served. A GAL will become involved only in cases where the judge feels it is necessary.
Is There an Alternative to the Child Speaking to the Judge?
A judge can order a custody evaluation if they deem it necessary or if one or both parents request it. A custody evaluation is performed by a mental health professional licensed by the Utah Department of Occupational and Professional Licensing. These evaluators speak with the child and use those conversations to gather information about the child’s preferences, relationships, and experiences with each parent. They will use that information to prepare an evaluation for the judge.
Determining What is Best for Your Child
The judge in your child custody case aims to determine the custody situation that best serves your child’s interests. That does not require a direct conversation between the judge and the child in many cases. When alternative methods aren’t sufficient, the judge may have a conversation directly with the child. While this can be considered testifying, it is not a typical courtroom testimony. In high-conflict divorces or when there are allegations of abuse or neglect, your child may have a legal guardian appointed to represent their interests. All of these options help the judge understand what is in a child’s best interests. That will form the basis of the court’s final child custody agreement.
