DAILY TOOL: Standard of Proof

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, then 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.

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 awards the money to the wrong party, 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.

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 10, 20, or even 30 years.

First, you would provide an example from, let's say, a First 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 scholar.google.com and search through cases using keywords like "freedom of association," "1st amendment," and "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 a raised standard of proof must be used.

Then you'll need to explain how your relationship, your rights, and your time with your child are part of your First Amendment "freedom of association" rights. 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.