When must courts admit evidence of witness bias in custody evaluations? Black v. Hennig Explained

In Black v. Hennig, the Utah Court of Appeals addressed important evidentiary questions regarding bias in custody evaluations and the standards for finding bad faith in forum shopping cases.

Background and Facts

Rebecca Black and O. Holger Hennig had two children together but never married. After Black relocated to Oregon with the children, Hennig filed for custody in Utah. The case involved a custody evaluation by Dr. Valerie Hale, who recommended joint custody if relocation occurred. Black sought to introduce Facebook screenshots showing a friendship between Dr. Hale and Hennig’s attorney to demonstrate bias, but the trial court excluded the evidence. The court awarded joint legal and physical custody to both parents and ordered Black to pay Hennig $7,000 for attorney fees related to her filing a parallel custody action in Oregon.

Key Legal Issues

The primary issues were whether the trial court erred in: (1) excluding Facebook evidence of bias between the custody evaluator and opposing counsel; (2) denying the motion to strike the evaluator’s testimony; (3) failing to give adequate weight to Black’s primary caregiver status in the custody determination; and (4) finding that Black acted in bad faith when filing in Oregon courts.

Court’s Analysis and Holding

The Court of Appeals ruled that the trial court should have admitted the Facebook evidence under Utah Rule of Evidence 608(c), which permits evidence of bias, prejudice, or motive to misrepresent. The court distinguished this from Rule 608(b), which prohibits extrinsic evidence of specific conduct to attack truthfulness. However, because the record lacked the actual Facebook screenshots, the appellate court could not conduct a meaningful harmless error analysis.

The court affirmed the denial of the motion to strike the custody evaluator’s testimony, finding that Black failed to challenge the trial court’s findings that the evaluator’s methodology was proper and that she followed professional standards. The court also upheld the joint custody award, concluding the trial court adequately considered Black’s primary caregiver status and the children’s stability needs.

However, the court reversed the bad faith finding regarding Black’s Oregon filing, holding that the trial court’s findings were insufficient to support a determination of subjective bad faith intent.

Practice Implications

This decision clarifies that evidence of witness bias involving specific conduct must be analyzed under Rule 608(c) rather than Rule 608(b). Practitioners should clearly articulate that bias evidence goes to motive to testify rather than truthfulness. The ruling also emphasizes that bad faith findings require specific factual findings about a party’s subjective intent, not merely procedural missteps. Additionally, the case demonstrates the importance of making a complete record when offering evidence, as inadequate records can prevent meaningful appellate review even when the trial court erred.