Rules of Civil Procedure – Comment Period Closes September 8, 2026

Proposed Rule 5 modifies the requirement to serve a notice of default judgment but preserves an uncertainty that has existed regarding that service: if an attorney appears in an action and the court later enters a judgment, must the Rule 58A notice of entry of judgment be served only on the attorney as required by Rule 5(b)(1), or should service also be made on the party?

I recommend that Rule 5(b)(1) be modified to require that any Rule 58A notice of judgment be served on both the attorney and the party. Too often, especially with default judgments, the judgment is entered as a result of a mistake or neglect by the attorney. The client should be notified directly of any judgment so that the attorney cannot hide the mistake.

Comments on Proposed Amendments to Rules 64 and 64E

The amendments proposed would codify the abusive practice of constables misusing writs of execution to pressure debtors for installment payments instead of performing the court directed and supervised seizure and sale process. As a consumer protection litigation attorney with more than 23 years of experience, I therefore oppose the proposed changes to Rules 64 and 64E.

Rules 64 and 64E exist to ensure that judgments are enforced through an official, impartial judicial process subject to court supervision, not through a private collection arrangement controlled by the person who benefits from obtaining payment. Under that process, the debtor receives notice of exemptions, an opportunity to object and be heard, and the constable must report an inventory of any seizures and proceeds of property sales to the court. The proposed amendments subvert those safeguards and convert the execution process into ongoing debt collection administered by constables without judicial oversight. This Court should reject those amendments or at least clarify their scope as suggested below.

This concern is not hypothetical. Utah’s execution process has already been the subject of repeated litigation challenging the way writs of execution have been misused by constables to obtain installment payments from judgment debtors. In that litigation, constables testified under oath that their payment collection process exists to avoid executing writs of execution. To that end, those constables sent letters to debtors threatening to seize and sell their property at a specified date, time, and location with no intention of ever carrying out those sales. Rather than taking action stop these abuses of the judicial process, the Legislature has now authorized constables to administer periodic payment arrangements. The proposed amendments to Rules 64 and 64E would now incorporate that practice into the Rules of Civil Procedure without addressing the abuse that gave rise to the litigation.

The Rules of Civil Procedure govern how a writ is obtained, served, and returned. They do not define the scope of a constable’s official duties and they cannot expand or diminish the protections available to debtors under federal or state consumer protection laws. That distinction should be made clear in the Rules themselves. Without such language, the amendments invite the argument that any collection activity undertaken by a constable is authorized by this Court and therefore beyond the reach of the FDCPA and Utah’s consumer protection statutes. Rejecting the proposed changes or incorporating a simple savings clause would prevent that misunderstanding and would clarify that allowing constables to collect debt does not authorize them to violate state or federal consumer protection statutes. I propose language along the following lines:

“Nothing in these rules may be construed to make the acceptance or administration of periodic payments part of the judicial execution process or an official duty of a constable, or as affecting the applicability of any federal or state law governing debt collection activity.”

The power of the State exists to enforce lawful judgments, not to facilitate private collection arrangements. A writ of execution is a command from the court to seize and sell a debtor’s property under strict judicial procedures and oversight. The court’s orders are not, and should not be reduced to, a discretionary process the constable can wholly disregard, which is precisely what some constables have testified their payment collection process is designed to accomplish. When the execution process is used to pressure payment rather than enforce the court’s order, judicial oversight and neutrality are replaced by a private collection arrangement where the constable’s financial interest is aligned with obtaining payment rather than simply carrying out the court’s command.

Courts entrust constables with significant authority because they are expected to exercise that authority as neutral officers of the court, not as interested participants who leverage the credibility of their office for a financial stake in the outcome. When a constable’s compensation depends upon administering long-term payment arrangements, the constable acquires a financial interest that differs materially from the traditional role of neutrally executing a writ and returning it to the court. The authority of public office should not be used as a means of generating private income. Indeed, while constables are now allowed to collect periodic payments, Utah Code § 76-8-110 paradoxically prohibits police officers from collecting debts for compensation or from holding a financial interest in a debt collection agency.

The Court should reject the proposed amendments. They would transform the execution process from a neutral judicial procedure into an ongoing debt collection system administered by constables for their own financial benefit, while removing the judicial oversight and protections the Rules were designed to provide. If the Court nevertheless adopts any portion of the proposal, the Rules should expressly state that making payment arrangements does not replace the judicial procedures governing execution of a writ, expand the official duties of a constable, or create any exception to applicable federal or state laws governing debt collection.

The proposed Rule 5 changes require that in the case of an application for a default judgment that an unrepresented party be served with the default judgment papers via first- class mail and does not give an avenue for service upon these individuals via email. As a high-volume creditor’s rights filer, these comments are offered from that perspective.

Forcing creditors to first-class mail these default judgment papers imposes an additional cost without an identified corresponding benefit. Most creditors would welcome additional contact from their defendants, but at this stage the defendants have largely already decided to not actively participate in the process. While the cost of one mailing may seem insignificant, multiplied across hundreds or thousands over the course of the year adds up.

Rule amendments should only impose additional requirements where there is a demonstrated corresponding benefit to the litigants or the process as a whole. Reaching out to known attorneys as proposed in this rule update appears to fulfill both prongs as when the defendant has an attorney the defendant is engaged in the process and receives a direct benefit from the representation. By contrast, there does not appear to be a comparable benefit to first-class mailing default judgment papers to parties who have not participated in the litigation process despite prior notice.

Furthermore, in today’s world email is as likely to reach and be read by a defendant as first-class mail. Creditors generally have the defendant’s email address either as a result of a prior business relationship or as otherwise used by the defendant to communicate with the creditor regarding the defendant’s account. Email is routine and, in many instances, may be more likely to be reviewed promptly than traditional mail.

It is my suggestion that in debt collection cases that there be an option for the serving party to email the default judgment papers to the last known email address on file with the creditor instead of having to send the default judgment papers via first-class mail. Additionally, I would suggest that the portion of the rule dealing with serving attorney’s licensed out of state be modified to allow for service to either the attorney’s preferred email address or the email address on file with the attorney licensing entity in the state where the attorney is licensed.

Below is a suggested edit.

(B) Email. If the party serving or being served a document does not have an
electronic filing account:
i) In the case of a debt collection case and the email address has been provided as part of the transaction related to the matter, emailing it to the most recent email address on file with the creditor, the most recent email address provided to the court as provided in Rule 10 or Rule 76 or;
ii) In all other cases where the person being served has provided to the court an email address as provided in Rule 10 or Rule 76 email it to that address; or
iii) if service is to an attorney licensed in Utah, to the email address on the attorney’s most recent filing or on file with the Utah State Bar; or
iv) if service is to an attorney not licensed in Utah, to the email address on the attorney’s most recent filing, the preferred email address of the attorney provided to the serving party, or the email address on file with the attorney licensing entity in the state where the attorney is licensed.

Summary of my comments on propose URCP 110:

1. Proposed paragraph (b)(2) applies to judicial interviews substantially the same restrictive threshold the Legislature imposed on compelled child testimony.
2. Concerns about litigation abuse and judicial workload justify reasonable controls, not a presumption against interviews.
3. Paragraph (b)(3) relies too heavily on speculation before the interview has occurred.
4. Citing “Best interest” does not substitute for an actual reason.
5. Possible coaching is not ordinarily a reason to avoid direct judicial inquiry.
6. Any specialized judicial training should be sound, practical, and publicly reviewable.
7. Parties and GALs may propose questions. The judicial officer should conduct the interview without an unnecessary audience.
8. Recording the interview is essential.
9. Rule 110 should not purchase protection from possible retaliation at the price of reliable factfinding.
10. Paragraph (c)(5): one party should not control another party’s access or response rights.
11. Paragraph (c)(6): tell the child the truth about confidentiality and retaliation.
12. Paragraph (d)(2): replace “potentially dispositive” with materiality and provide meaningful access to the record.
13. Protect the interview record from misuse, not from legitimate adjudicative access.

I support adoption of a rule that facilitates, rather than discourages, judges and commissioners conducting appropriate interviews of children in child custody and parent-time disputes.

Proposed Rule 110 gets several important things right. It distinguishes a judicial interview from child testimony and from an interview conducted by a nonjudicial person. It permits parties and an attorney guardian ad litem to propose questions while leaving the actual questioning to the judge or commissioner. It requires the interview to be recorded. It requires the judicial officer to explain the interview process directly to the child in age-appropriate terms. And it recognizes that information obtained in the interview can create rights of disclosure and response.

Those provisions are worthwhile.

But the proposed rule’s central premise is backwards.

Paragraphs (b)(2) and (b)(3) treat a judicial interview as something approaching an extraordinary last resort. Before talking directly with the child, the court would have to determine that “extenuating circumstances necessitate the interview,” that “there is no other reasonable method to obtain information from the child,” and that the interview itself is in the child’s best interest. The rule then adds a series of predictive considerations that make it easier still to decline the interview before the court knows what the interview would reveal.

That is the wrong presumption.

A child may be among the most percipient witnesses to the family circumstances bearing on custody and parent-time and is the only firsthand source of the child’s own wishes and concerns. When applicable law permits the court to inquire directly and the requested interview concerns a material issue, the starting point should ordinarily be to hear from the child unless a concrete, evidence-supported reason establishes why the court should not.

That does not mean every request requires an unlimited interview. Courts should reject immaterial requests, prevent unnecessary repetitive interviews, control their scope and duration, and protect a child from a substantial and particularized risk of serious harm that cannot reasonably be mitigated.

Those are legitimate limitations. A general presumption against firsthand information is not.

1. Proposed paragraph (b)(2) applies to judicial interviews substantially the same restrictive threshold the Legislature imposed on compelled child testimony.

This is my principal objection. Utah Code § 81-9-204(5)(a) provides that a minor child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances necessitate hearing the child’s testimony and there is no other reasonable method of presenting it.

The Legislature then addresses something different. Section 81-9-204(5)(b) separately authorizes the court to inquire into and consider the child’s desires regarding future custody and parent-time schedules. Section 81-9-204(5)(c) separately provides for the court to conduct such an interview in camera. Its reference to whether an interview is the “only method” addresses when prior consent of the parties is unnecessary; it does not impose “only method” as a universal prerequisite to conducting every judicial interview.

Proposed Rule 110 itself recognizes the distinction. Paragraph (a)(2) expressly provides that the rule does not apply to “testimony by a child.”

Yet paragraph (b)(2) then provides that a judicial interview may occur only if, among other things, “extenuating circumstances necessitate the interview” and “there is no other reasonable method to obtain information from the child”—substantially the same restrictive concepts the Legislature expressly applied to compelling a child to testify.

Those are different procedures. The statute treats them differently. The rule should too.

More fundamentally, why should “extenuating circumstances” be necessary before a judge or commissioner may speak directly with a child about matters the court is legally permitted to inquire into?

Why should second-hand communication be preferred over first-hand communication?

Having a GAL, evaluator, therapist, parent, or other intermediary speak with the child and later report what the child said is not equivalent to hearing directly from the child. It filters the information. The precise question is unknown. The precise answer is unknown. Context is lost. Natural follow-up questions cannot be asked by the factfinder when they occur. The intermediary’s understanding, memory, characterization, and opinions necessarily stand between the original source and the court.

A third-party account can sometimes be useful, but is neither needed nor warranted. And it is not the original source. The better presumption runs in the opposite direction:

When a proper request for a judicial interview concerns a material matter the law permits the court to inquire into, the interview should presumptively occur unless a concrete, compelling, evidence-supported reason establishes that it should not.

I recommend replacing paragraph (b)(2) with language substantially along these lines:

(2) Upon a request under paragraph (b)(1) that identifies with reasonable particularity the subject matter of the requested interview, the court shall conduct the judicial interview unless the court finds, based upon specific facts and not merely generalized concerns or speculation, that:

(A) the proposed subject of the interview is outside the scope of matters the court is legally permitted to inquire into or is immaterial to a disputed custody or parent-time issue;

(B) the child plainly lacks the ability to communicate meaningfully concerning the subject of the proposed interview;

(C) conducting the interview would create a substantial and particularized risk of serious harm to the child that cannot reasonably be mitigated by the manner in which the interview is conducted; or

(D) the requested interview would be unreasonably cumulative because the court has recently interviewed the child concerning substantially the same matters and no material change warrants another interview.

The court may reasonably limit the scope and duration of the interview. The court shall state on the record the specific basis for denying a requested judicial interview.

The precise wording can be refined. The important principles are not complicated: relevance, lawful scope, meaningful ability to communicate, protection from proved and serious non-mitigable harm, and protection against unnecessary repetition.

What should disappear is the presumption that direct judicial inquiry requires “extenuating circumstances.”

2. Concerns about litigation abuse and judicial workload justify reasonable controls, not a presumption against interviews.

One predictable objection to a presumption favoring appropriate interviews is that high-conflict litigants will demand them constantly, either to involve children unnecessarily in litigation or simply to burden the court.

That possibility should be addressed directly.

It does not justify proposed paragraph (b)(2).

Every procedural device is capable of misuse. The answer is to prohibit and control misuse, not to make legitimate use extraordinarily difficult.

The proposed language above does that. A party requesting an interview should identify its subject with reasonable particularity. The subject must be material and within the lawful scope of judicial inquiry. Repetitive interviews may be denied as unreasonably cumulative. The court may limit the interview’s duration and subject matter. And when misuse occurs through a filing, existing Rule 11 already prohibits papers presented for an improper purpose such as harassment, unnecessary delay, or needless increase in litigation cost.

Those are sensible anti-abuse mechanisms. An “extenuating circumstances” barrier is not. It protects against abuse by impairing proper use.

Judicial workload is likewise a legitimate administrative concern, but it does not justify preferring inferior information.

A presumption favoring an appropriate interview does not mean every interview must consume hours. A judge can identify the material subjects to be discussed and conduct a focused interview of reasonable duration.

And direct, recorded communication has an efficiency advantage of its own: it creates one identifiable source for what the child actually told the court instead of inviting collateral disputes over what different parents, GALs, evaluators, therapists, or other intermediaries claim the child said.

I do not contend that every judicial interview will save time. Some will not. The narrower principle, however, is enough: Judicial economy should be achieved by controlling relevance, scope, duration, and unnecessary repetition—not by creating a substantive presumption against obtaining material information from the original source.

3. Paragraph (b)(3) relies too heavily on speculation before the interview has occurred.

Proposed paragraph (b)(3) asks the court to predict whether the interview is “likely” to assist the court, its “likely benefit” to the child, the “potential harm” to the child, and whether some other process can elicit the child’s views.

Some of these considerations may matter in a particular case. The problem is making speculative predictions grounds for declining the interview before the judicial officer knows what direct communication with the child will reveal.

– Likelihood the interview will assist the court. How can the court reliably know what it will learn without conducting the interview?

An interview that ultimately proves unhelpful was not therefore unreasonable to conduct. Factfinders regularly receive information that ultimately receives little or no weight. We ordinarily do not insist upon proof of the information’s ultimate value before the factfinder may receive it.

– Age, maturity, and ability to communicate. There will be obvious cases in which a child plainly lacks the ability to communicate meaningfully. The rule should accommodate them. But maturity and communicative ability are often best assessed by communicating with the child. They should not become reasons for refusing an interview based merely on assumptions about what the court expects to encounter.

– “Likely benefit” to the child. A judicial interview is a fact-gathering procedure. Its legitimacy should not depend upon proving that the act of interviewing itself confers an independent benefit on the child. The relevant benefit is that the court deciding the child’s custody and parent-time does so with better information.

– Potential harm. Actual, particularized risks deserve serious consideration. Generalized possibilities do not.
Virtually any involvement in litigation may cause anxiety, embarrassment, discomfort, or displeasure. A standard based simply on “potential harm,” without requiring evidence concerning probability, seriousness, and reasonable mitigation, permits speculation to substitute for analysis.

If competent information establishes that interviewing a particular child would create a substantial and particularized risk of serious harm that cannot reasonably be mitigated, that is a legitimate basis to decline or modify the interview.

The rule should require that showing rather than presume it.

– Other processes for obtaining the child’s views. For a child capable of communicating directly with the factfinder, no intermediary supplies the same thing as direct communication. Another process may sometimes be useful or necessary. Its availability should not itself establish that direct communication is dispensable.

– Whether the child wants to communicate. The child’s willingness or reluctance to communicate deserves consideration, particularly in deciding how an interview should be conducted. It should not automatically determine whether the court receives otherwise material information. A reluctant child may have important reasons for the reluctance. Indeed, fear of upsetting or angering a parent may itself be information the court should know.

– Recognition or enforcement elsewhere. Paragraph (b)(3)(F), concerning whether the interview is likely to facilitate recognition or enforcement in another state or foreign court, appears remote from the central question of whether the judicial officer should hear directly from the child. Unless some specific legal requirement makes this factor necessary, I recommend deleting it.

4. “Best interest” should not substitute for an actual reason.

I recommend deleting proposed paragraph (b)(2)(C)’s requirement that conducting the interview itself be found to be “in the child’s best interest.”

The best-interest standard properly governs the ultimate custody and parent-time determination. But saying, “I do not find interviewing the child to be in the child’s best interest,” does not explain why the interview should not occur.

If the problem is serious psychological harm, identify the harm and the evidence establishing it.

If the child cannot communicate meaningfully, identify why.

If the proposed subject is immaterial or outside the court’s lawful inquiry, identify it.

If another interview would be needlessly repetitive, identify the prior interview and explain why nothing material has changed.

Those are reasons that can be evaluated and reviewed.

“In the child’s best interest,” standing alone, is merely a conclusion. Rule 110 should require the reasoning.

5. Possible coaching is not ordinarily a reason to avoid direct judicial inquiry.

Another concern is that a child may have been coached. That concern is real too. But avoiding direct communication with the child does not solve it.

No judicial officer can infallibly determine from demeanor whether a child has been coached, and the rule should not rest on any assumption that judges possess that ability. But direct inquiry gives the factfinder something an intermediary’s summary does not: the opportunity to ask follow-up questions.

If a child uses unusual or adult terminology, the judicial officer can ask what the child understands the words to mean. If the child states a conclusion, the judicial officer can ask what happened that led the child to it. If the child describes something the child did not personally observe, the judicial officer can ask how the child learned it. If the child’s preference rests on particular experiences or concerns, the judicial officer can explore those reasons within the lawful scope of the interview.

The point is not that direct questioning magically detects coaching. The point is that a concern about coaching generally supports careful direct inquiry, not deliberate reliance on another adult’s interpretation of the child’s statements.

6. Any specialized judicial training should be sound, practical, and publicly reviewable.

Proposed paragraph (b)(4) would require a judge or commissioner conducting an interview first to complete whatever child-interview training the Judicial Council requires.

I question whether specialized training should operate as a prerequisite to a judicial officer conducting an interview at all. Judges and commissioners routinely question people of differing ages, abilities, educational levels, communication styles, and emotional states.

If specialized child-interview training is nevertheless required, it should be grounded in reliable evidence, focused on neutral and non-leading questioning rather than promotion of a disputed psychological theory, reasonably limited in time and cost, and readily available to every judicial officer who may need it.

The training materials should also be publicly available for review. If judicial officers are being taught a particular methodology for questioning children whose statements may materially influence custody and parent-time decisions, the public and the bar should be able to know what that methodology is.

Training should improve judicial interviews. It should not become another practical impediment to conducting them.

7. Parties and GALs may propose questions. The judicial officer should conduct the interview without an unnecessary audience.

I support proposed paragraph (c)(1), which permits a party and an attorney guardian ad litem to propose questions but leaves the court to determine what questions actually will be asked.

That is an appropriate role for a GAL.

I strongly support paragraph (c)(2)’s requirement that the interview be recorded.

I oppose paragraph (c)(3)’s provision that the attorney guardian ad litem will be permitted to attend the interview in person. Proposed paragraph (c)(4), by contrast, generally excludes the parties and their attorneys. Why should the GAL be treated differently? The GAL is not needed to conduct the interview. The GAL is not the factfinder. The GAL can propose questions beforehand. And the interview is recorded.

Physical attendance therefore adds an adult whose presence is unnecessary to the basic function being performed and whose presence can affect what the child says or does not say.

A child may know what result the GAL favors. The child may seek the GAL’s approval or fear the GAL’s disapproval. The child may have previously told the GAL something different and hesitate to clarify, qualify, or change it while that same lawyer listens.

None of this requires bad conduct by the GAL. The influence need not be intentional to exist.

The cleanest procedure is the simplest one.

I recommend replacing paragraphs (c)(3) and (c)(4) with:

Except upon a finding of good cause based on particularized circumstances, no person other than the child and the judge or commissioner conducting the interview may attend, observe, or listen to the judicial interview in real time.

When siblings are involved, the rule should not prohibit the judicial officer from interviewing them separately, together, or both when reasonably useful.

But the default should be the judicial officer and the child.

8. Recording the interview is essential.

Paragraph (c)(2) provides: “The court will record the interview.”

That requirement should remain without qualification.

Without a record, there is no reliable way to determine precisely what questions were asked, what answers were given, what the child did or did not say, whether important qualifications or follow-up questions occurred, whether the interview was competently conducted, or whether the court later characterized the interview accurately.

The record is also essential when meaningful review becomes necessary.

If the value of a judicial interview is direct communication between the original source and the factfinder, preserving that direct communication accurately should be nonnegotiable.

9. Rule 110 should not purchase protection from possible retaliation at the price of reliable factfinding.

A serious concern remains: a child who knows that a parent may eventually learn what the child tells the court may be less candid. In some cases, the child may fear anger, pressure, punishment, manipulation, or retaliation. That is a real risk. But secrecy creates serious risks too.

A child may know things about each parent’s home, behavior, relationships, interactions, parenting, and the child’s own experiences that nobody else knows firsthand. The child is also the only firsthand source of the child’s own genuine wishes and concerns.

Thus, the choice is not between disclosure with risk and confidentiality without risk. Both choices carry risk.

Obtaining the child’s information directly and allowing meaningful access to material information may expose the child to anger, pressure, or retaliation.

Withholding, filtering, or concealing that information risks inaccurate findings, erroneous custody and parent-time decisions, reliance on second-hand characterizations, and adjudication based upon information an affected party cannot meaningfully answer.

When those risks genuinely conflict, the more principled choice for an adjudicative system is the one that preserves accurate factfinding and procedural fairness. The law should not purchase protection from possible retaliation at the price of deliberate ignorance of material information. The proper response to retaliation is to address retaliation.

If there is a demonstrated reason to fear that a parent will threaten, punish, intimidate, manipulate, pressure, or retaliate against the child for speaking honestly with the court, the court should take appropriate measures to prevent that conduct. If retaliation occurs, it should be addressed directly. And a parent’s demonstrated willingness to retaliate against a child for communicating honestly with the court may itself be relevant to the very custody and parent-time determination before the court.

Privacy from the public may be appropriate. Secret adjudicative information is something different.

A judicial interview is not therapy. A therapist treats a patient. A judicial officer obtains information for use in deciding legal rights and obligations. Therapeutic confidentiality is therefore not the proper model for communications that may materially influence a custody or parent-time decision.

10. Paragraph (c)(5): one party should not control another party’s access or response rights.

Proposed paragraph (c)(5) permits the parties jointly to waive access to the interview record, notice of the child’s communications, and the right to respond. It further provides that an approved stipulation ordinarily precludes later access, including on appeal.

I do not object to permitting a competent party knowingly to waive that party’s own access and response rights.

But the rule should make clear that one party cannot waive, block, or condition another party’s rights.

Nor should paragraph (c)(5) be reversed so that confidentiality becomes the default unless both parties consent to disclosure. That merely moves the veto. Either parent could then prevent the other from learning material information heard by the decision-maker simply by refusing to agree to access.

The cleaner principle is individual waiver: Each party may control that party’s own waiver. One party’s choice should not extinguish another party’s access or response rights.

11. Paragraph (c)(6): tell the child the truth about confidentiality and retaliation.

I generally support paragraph (c)(6), which requires the judicial officer to explain the interview process directly to the child before questioning begins.

It is true that telling a child the interview may later be disclosed to the parties can affect what the child is willing to say. That does not justify misleading the child or creating an expectation of secrecy that the adjudicative process cannot fairly honor. The court should explain the situation truthfully, in age-appropriate language, substantially along these lines:

This interview is private from the public, but it is part of a court case. What you tell me may affect decisions I make. Because I have to be fair to the people whose rights I am deciding, what you tell me may have to be shared with the parties and their lawyers. You should tell me the truth even if you think someone may not like what you say. If you are worried that anyone may threaten you, pressure you, punish you, or retaliate against you because of what you tell me, you should tell me that too.

That warning does not eliminate risk. Nothing can. But it is honest, and it treats fear of retaliation as information the court should know rather than as a reason to avoid learning what the child has to say.

12. Paragraph (d)(2): replace “potentially dispositive” with materiality and provide meaningful access to the record.

Proposed paragraph (d)(2) recognizes an important principle: when a child makes a contested factual allegation that may determine the outcome, the parties must receive disclosure and an opportunity to respond before the court makes its final decision. The principle is sound. The threshold is too narrow.

The proposed rule uses “potentially dispositive.” Child custody and parent-time determinations are rarely based on one isolated fact that independently decides the case. They ordinarily depend on the cumulative effect of facts, perceptions, relationships, experiences, concerns, preferences, and credibility assessments. A communication need not be independently dispositive to affect the result materially. Nor are a child’s “views” always cleanly separable from factual assertions.

Consider:

• “I don’t want to stay with Dad because he scares me.”
• “Mom told me not to tell Dad what happens at her house.”
• “I want more time with Mom because Dad is never home.”
• “I don’t like going to Mom’s because of how her boyfriend treats me.”

Each statement contains some combination of preference, perception, explanation, and factual assertion. The court should not be permitted materially to rely on such information while withholding it simply because no isolated statement qualifies as “potentially dispositive.” The better threshold is materiality.

I recommend language substantially along these lines:

Except to the extent a party has knowingly waived that party’s own access and response rights, before making a decision based in whole or in material part upon a communication made by the child during the judicial interview concerning a contested matter, the court shall disclose the communication and sufficient surrounding context to permit a meaningful opportunity to respond with evidence and legal argument. If the communication cannot fairly be understood, evaluated, or answered without access to the interview record, the court shall provide such access.

Meaningful access should ordinarily include enough of the actual record to understand what the court heard and relied upon, not merely the court’s characterization of it.

Context matters. The wording of the question matters. The wording of the answer matters. Follow-up questions, clarifications, qualifications, contradictions, and hesitations may matter. The judicial interview is valuable precisely because it removes intermediaries between the child and the decision-maker. Rule 110 should not then unnecessarily create a new intermediary by reducing the interview to the judge’s later summary for the parties.

13. Protect the interview record from misuse, not from legitimate adjudicative access.

Meaningful party access does not require making the recording public or permitting unrestricted distribution.

Rule 110 can protect the child directly. It can restrict public access. It can prohibit publication or posting. It can prohibit dissemination to nonparties except as authorized by the court. It can prohibit use of the recording to harass, shame, interrogate, threaten, or intimidate the child. It can impose additional narrowly tailored protections when concrete circumstances justify them. Those restrictions target the potential misconduct itself.

What the rule should not do is use ignorance of what the child said as the method of preventing misuse. Proposed paragraph (d)(3) appropriately restricts disclosure of the interview contents and record to nonparties during the proceeding and after its conclusion. The rule should, however, clarify the duration and exceptions to that restriction, including whether and under what protections the interviewed child may later obtain the child’s own interview record and when the record may be accessed if genuinely necessary in a later judicial proceeding concerning the child.