TOOL OF THE DAY: Standard of Proof
CATEGORY: Family Law Due Process

Preponderance of the evidence vs. Clear and Convincing evidence might be how you know it. After this post you will be on your way to schooling even the best of them on why the standard of proof used in your family law hearing matters. Do not ever assume that a court knows to use the raised level of proof. And once again just because you ask for it to be raised, does not mean the judge is going to agree. But remember not persuading the judge does not mean that your argument does not have merit. So let’s strip down this subject so that the courts cannot take advantage of you on this one anymore.

One of the purposes of setting a standard of proof is to reduce the risk of errors that judges might make regarding an individual’s rights. Naturally, if the family courts are assuming that you have no rights than this issue will not be a priority for them. Judges who are not interested in hearing about standard of proof generally want you to just do as they say and go away. It is much easier for them to sweep those rights under the rug and place the burden on you to garner their support or prove innocence. (NOTE: Don’t confuse burden of proof with standard of proof. The former has to do with which party must prove their case. The latter has to do with how much proof they must show. The burden of proving guilt or innocence by the way is a different than the standard of evidence that is used.” If you read the first Daily Tool on “Disposition Hearing” then you will understand the difference. This is not the same thing as “burden of proof.” Keep reading and you’ll see the difference.)

How is standard of proof generally determined? Standard of proof is set by statute often based on a Supreme Court opinion. It is generally determined based on the type of rights that are being affected by the lawsuit. If you noticed, small claims court where two parties are disputing over a small sum of money requires very little evidence and not very much procedure. This is because if the judge makes the wrong decision and let’s say awards the money to the wrong party, then the losing party is only out a small sum of money. So the risk of error and the effect that this error might have on a person long term is much less than the risk of error of getting your parental rights wrong. (And by the way, when I’m referring to the money as a small sum in relation to the amount of money that gets brought to suit in civil or criminal courts compared to small claims courts.)

So when something as important as your rights (time) with your child are in question or being attacked you would think that a higher level of proof than “preponderance of the evidence” would be required. Actually you can make a good case for why it is required. Keep reading.

So let’s see what happens if you don’t have a statute that requires more than “preponderance of the evidence?” Well you can ask for a higher standard of proof to be required in your pleadings and you can argue for it at your hearings as well. You’ll need to be prepared of course to provide why this applies to your particular case when the judge has probably been using the lowered standards for probably 10, 20, or even 30 years.

First you would provide an example from let’s say a 1st amendment case where the justices argued that a higher standard of proof is required when such an important right is being affected. You can use and search through cases using keywords like “freedom of association,” “1st amendment,” freedom of religion,” and then search for the words “preponderance” and “clear and convincing” within the same case. Read through the reasoning to see if the justices address this argument. There are many cases out there where they share their reasoning on when and why raised standard of proof should be used.

Then you’ll need to explain how your relationship, your rights, and your time with your child are part of your “freedom of association” 1st amendment rights, etc. And also introduce caselaw that refers to your parental rights as fundamental rights. Why? Because you will see in the caselaw that the majority of fundamental rights are protected with “clear and convincing” evidence.

This is because, you guessed it, these rights are so important that they need a higher level of protection from judges inadvertently making a bad decision.

Judges make bad decisions in child custody and divorce cases every day. Protect yourself and your child from these arbitrary and capricious errors by protecting yourself and your child with persuading the judge that proper due process requires this raised level of proof.

This, in combination with requiring the proper type of hearing (See the Daily Tool post on Disposition Hearing), you are building a fort equivalent to that is much more difficult to penetrate with false allegations, or by alienating you from your child, or by narcissistic behaviors that many experts and judges are fooled by and sucked into the attacking parent’s corner with.

Once you understand how protective raising the standard of proof can be for you and your family, you will surely want to incorporate this into part of your presentation to the court.

After you put your persuasive argument together head over to the local law library or order a basic book on evidence from Westlaw or somewhere that carries one for your State so that you can learn how to block evidence that doesn’t meet the standards as well as how to enter the evidence to protect yourself from the onslaught of attacks that the court might try to allow.

[You can learn more about these rights and how to reason through them and protect them from our books and courses. Click at the top on Store and you will find the books and training tabs.]

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*Picture credited to:

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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