TOOL OF THE DAY: Rebuttable Presumption

CATEGORY: Family Law Procedural

There are many different types of presumptions under the law. One that catches many people off guard if they are first timers in the family courts or domestic relations courts is the statutory presumption. This is a “conclusive presumption that is created by statute.” [p1306 Black’s Law Dictionary, Ninth Edition] So I will discuss that one first so that you can understand rebuttable presumption more thoroughly.

You won’t necessarily hear the words “statutory presumption” used together but instead may only hear the judge just refer to the statute that is authorizing the court to do something, like let’s say, to interfere with your rights regarding your family with nothing more than a request by another party. This is in fact the judge applying a statutory presumption that the statutes authorize the court to interfere with your private family relationships (rights and duties) without proving anything more than whether or not you are a resident, there is an action before the court, and whether you were served properly, and a few other procedural technicalities. None of which require that the judge first determine whether or not the request to interfere has met constitutional and judicial requirements to overcome the protections of your family privacy, freedom of religion, 1st amendment freedom of association, and equal protection of the laws. Nope, the judges are just making statutory assumptions that the statute they are using has overcome the necessity for any of this. NOTE: Be careful that you don’t get sidetracked by them with arguments regarding judicial expediency. These can also include consolidation arguments.

It is your job to persuade the court that applying the statute is putting the cart before the horse and that the statute may only apply once proper triggers have been met. Say for instance you are referring to the “best interest” part of a statute. You would want to present to the court the law that you believe applies and why – which would be the Supreme law of the land from U.S. Supreme Court cases and other opinions from the judiciary controlling and advisory, as well as the Constitution (i.e., the amendments that protect the activities that allow you to make independent and individual private family decisions separate and apart from anyone else.) When you do this you are preserving your ability to bring this issue up later if you do not persuade the judge that this is the correct application of the law. [This part is called PRESERVING ERROR and will be posted on another Daily Tool later.]

Many attorneys will not attempt to do most of this. Sadly, so many of them state that they have not been trained to challenge the statutes or just simply aren’t willing to challenge.

Since you are dealing with fundamental rights it would only make sense to apply the reasoning that comes from the justices that interpret those rights and the protections that those rights are afforded. [You can learn more about these rights and how to reason through them and protect them from our books and courses. Click here and you will find the books and training for less than a dollar a day. Stay a member for as long as you want or as short as you want, but you will find what you need to give you more tools to help you determine what might be needed to win* your child custody case and get the best results possible.]


Now we can get to what is “rebuttable presumption?” “(1852) An inference drawn from certain facts that establish a prima facie case which may be overcome by the introduction of contrary evidence.” (p1306 Black’s Law Dictionary Ninth Edition)

Once the presumption is overcome, the judge then presumes that the court gets to tell you when you can and cannot see your child based on the court’s determination of best interest. The judge then presumes that he gets to apply the best interest factors in making this determination because that is what the statutes have determined how he should do his job since in his mind he might believe that the presumptions have been overcome; according to the legislators, with the filing of the divorce complaint . . .


. . .just because another parent asked the court to do so. And the judge is making the assumption that the court is allowed to apply rights to you and your child differently and unequally.

I say “at best” a “rebuttable presumption” because there are many cases where a judge does not allow you to rebut their presumption. The judge may be assuming that the statute is absolute. This doesn’t mean that you shy away from trying to persuade the judge with your reasoning of how you believe the law should be applied. You must get your attempts at persuasion on the record. Many parents and attorneys shy away from this for fear of inflaming and angering the judge. Inflaming and angering the judge does not cause your rights to be forfeited, not presenting your idea of how the law should be applied does. Unfortunately, in this case, your fear is not serving to protect you but in fact may end up being the reason you go unprotected and lose without any recourse. Trying to argue to an appellate court that a judge was wrong because you didn’t get your way is completely different from presenting cogent complaint that the judge simply did not apply the law properly. In this case, you are presenting a persuasive argument for order of application of the different branches that interpret the law.

Understanding these things might help you understand why it is so difficult at times to get through to some of these judges. Think of your job of persuading them like an Algebra problem. Most of us, after we have learned how to do the basic problems skip many steps later on and many times cannot even explain the steps involved to solve the problems anymore. Some judges are skipping steps because they may believe or been taught that the basics have been considered and are no longer necessary to work through. When the basics actually have never been applied. This could explain why in some cases judges believe that the statutes are constitutional. They have the presumption that they are not enforcers of the constitution but instead enforcers of the statutes. Respectfully remind them that they should be applying the constitution first and then statute second. Where the statute does not comply with constitutional requirements there is clear due process in place to resolve the issue. (See the Daily Tool from yesterday, called “Disposition Hearing” to help you understand some of the due process.)

Now when you face a hearing you can alert the judge that you want to make an argument regarding the presumptions that the court might use in order to resolve any disagreements and to present clarifications about what your rights are and what the court should be doing first. Put the elephant in the room and address the things that you believe the court might be inclined or accustomed to do, like make statutory presumptions.

Then you can ask the court to consider applying constitutional and judicial rules of law before applying the statutes that you believe are violating these constitutional interpretations.

You may have noticed that I steered away from the “rebuttable presumption” language because I believe it is unnecessary to add the language that the presumption is rebuttable for the purpose of parenting statutes. The Supreme Court refers to  your rights as presumptive and so should you. So when you see someone suggesting that a new Bill should be introduced with the words that it is a “rebuttable presumption” that you have equal rights, that language could be more detrimental than helpful. You do have equal rights, just as you are human, period. Your rights can be deprived, just as your right to life can be taken away but only after careful deliberations with proper due process. So should your basic family rights that are inalienable be treated equally as important and only deprived after careful deliberation with proper due process.

You must be careful like anything else with how a rebuttable presumption gets defined. If you are trying to create a presumption so that parents start off on a level-playing field, then you have to make sure that the proper law is used before being allowed to overcome the presumption.

Facts and evidence can be used to argue against any presumption that is rebuttable. So you need to understand what kinds of presumptions there are, what presumptions are rebuttable and which ones are not. You don’t want to make something rebuttable if it is not in the first place and you don’t want to make it easier to rebut something by not understanding how this works.

Get your parental presumptions from SCOTUS. Here is one: The presumption is that fit parents act in their child’s best interest. As a biological parent, as long as you are the biological parent and have established a relationship with your child, you have fundamental, individual, inalienable parental rights. These rights can be deprived only once the State has proven the proper authority to do so.

So if you are going to level the playing field you start with all parents are presumed to be fit and acting in their child’s best interest. 

(NOTE: That states can have laws that provide more rights than those that are fundamental or inalienable. We are talking about the inalienable ones in this post, the ones that are tied to your 1st amendment right to free association, your right to influence your child within the law, etc.)

NOTE: A court should only be inserting their notion or idea of best interest after they have found both parents to be unfit and/or a direct clear and present danger to the child. A statute should not be authorizing any court to ignore these protections.

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Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author

Divorce Solutions and Child Custody Solutions

Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)

Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)


Twitter: (@fixfamilycourts)



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