AUGUST 2026 | 11 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. this requirement would further the weaponizing of children in family law cases.27 Neither the majority nor the concurring and dissenting justices, however, addressed the ongoing effect of such heavy reliance upon hearsay itself and the parents’ lack of opportunity to challenge it in an evidentiary sense. The variety of hearsay involved in the testimony of children has and continues to make substantial impact in family law cases. In Lowry v. Lewis,28 the court undertook an appeal wherein a mother alleged the preference of the child (expressed in camera) was not, on its own, sufficient to justify a change in custody. Distinguishing the issue of modification from an original custody decision, the court affirmed prior cases that found it is unnecessary for a parent to meet the burden of proof for modification of custody in Gibbons v. Gibbons29 as long as the child’s preference is well-founded as set forth in Nazworth.30 While the courts continue to focus primarily on giving children with an intelligent preference a path to be heard within litigation, the balance of their rights and those of their parents continue to be a source of question and conflict. The process set forth in 43 O.S. §113 does protect children from being forced to testify in front of adversarial parents; however, it does not insulate children from being coached by one or both parents prior to the interview and therefore does not ensure the preference is free of influence of litigating parents at war over physical and legal custodial rights. The process often also leaves even those parents who behave in good faith with more questions than answers and without access to the kind of evidentiary proof otherwise provided in support of legal rulings. Guardians ad Litem It is also not uncommon for a guardian ad litem to be appointed, even where the court is willing to hear from children directly prior to, during or after trial prior to ruling. Where a guardian ad litem is appointed, they are required to be present with the child in chambers during the child’s in camera interview, but their role expands to include much more than mere presence in the courtroom.31 Since 1997, 43 O.S. §107.3 has enabled trial courts to appoint guardians ad litem (hereafter referred to as GALs).32 The GAL is an officer of the court, appointed to “objectively advocate on behalf of the child.”33 The GAL is vested with a number of investigative responsibilities and submits factual reports with their findings to the court to assist the court in determining the best interests of the child.34 The GAL is required to maintain “as much as possible” confidentiality and is not subject to discovery.35 The GAL reports occupy a unique place in Oklahoma evidence law. While the best interest determinations remain with the trial court, the GAL’s findings are often the mechanism by which information outside the court comes in, as well as the thoughts, feelings and preferences of the children who are the subject of the litigation.36 The report could also include allegations of domestic abuse, specifically those of the type covered in 12 O.S. §2803. A GAL is treated differently than any other witness in a case. As an “arm of the court”, a GAL is, by default, assumed to be neutral. Therefore, the amount of access they have to the investigative process and sensitive information must be weighed against the fact that they cannot be subjected to discovery, including depositions. This routinely results in ripe disputes about the propriety of evidence being admitted and the proper weight to give the GAL’s findings and any recommendations made as to custody and visitation, which often include child hearsay and the hearsay of third parties who are collateral witnesses, either directly or by the GAL’s reliance on the hearsay statements in findings and/or recommendations. Despite the GALs’ neutral role, parents have attempted to use GALs as tools in gaining an advantage, attempting to sway the GAL to or away from the parent’s position. This often involves voluminous The variety of hearsay involved in the testimony of children has and continues to make substantial impact in family law cases.
RkJQdWJsaXNoZXIy OTk3MQ==