Burden of Proof. What it Means to You in Family Court

ContemporaneousNotes_layersDifferent areas of law require different burdens of proof. In Criminal Law, the burden of proof is “beyond a reasonable doubt,” commonly thought of as 99% certainty. For Family Law, the burden of proof is considerably lower, but there are essentially two levels of proof required depending on what you are trying to prove. Let’s look at those two levels:

Preponderance of the Evidence = 51% Certainty. This is the level of proof required in General Assertions. Lets say you are asserting to the court that your Ex owes you money or that you want to modify custody/visitation. The judge may rule in your favor based on a “preponderence of the evidence,” meaning you’ve demonstrated with a 51% certainty (more likely than not) that your Ex really does owe you money or that the requested modification of custody/visitation is in the best interest of the children.

Clear and Convincing Evidence = 75% Certainty. This is the level of proof required in Proving Contempt. In many cases, my clients are coming to me because their Ex is not following a court order, the set of rules handed down in a previous judgment with regard to such issues as child custody, visitation rights, or property division. When someone disobeys a court order, they are “in contempt,” a legal term for someone’s behavior when they knowingly defy the court. This is a serious matter that can lead to jail time, hence the higher burden of proof.

As an Example: Let’s say your Ex has repeatedly denied you visitation as specified on the court order. The challenge now, is to PROVE that your Ex is in contempt.

There are three things that you and your attorney must prove to this higher standard of clear and convincing evidence (75% Certainty):

1. Prove there is a written court order in your case requiring your Ex to fulfill the particular obligation they are failing to fulfill.

2. Prove your Ex KNEW there was a court order requiring them to fulfill the obligation that they are failing to fulfill.

3. Prove your Ex WILLFULLY refused to fulfill the obligation.

In the above example, showing that there is a court order is relatively easy. Showing where your Ex signed the court order is also relatively easy. Showing that they willfully refused to fulfill the obligation is NOT as easy, and must be demonstrated to a 75% certainty.

This brings us to the topic of “contemporaneous notes” a legal term for notes written at or near the time of the event, while the event is fresh in your mind. This adds credibility to your notes. If your notes were made before the current fight began, your notes are more believable.

In the above example, your Ex has refused to turn the kids over to you for your court ordered visitation. Lets say you tell your Ex that he or she is in violation of the court order, and document it that same evening in your journal. You now have a contemporaneous note. The next time your Ex refuses to allow you visitation, you are in a good position to show that your Ex is “in contempt,” because they continued to defy the court order, even after you pointed out to them that they are defying it.

Your Ex’s only recourse, would be a contemporaneous note of their own that counters yours or, more likely, getting one of their family or friends to claim that your Ex did not fail to let you have the kids but that you failed to communicate with your Ex (the it’s not me, it’s them defense – which is all too common). In that case it will come down to text messages or e-mails or phone records. If you can show that you made the contact, your Ex will be unlikely to counter such proof and you will likely prevail.

Understanding how the burden of proof can work FOR you or AGAINST you in Family Law is important.

When your ex throws dirt at you in court, it isn’t always easy to prove that you didn’t do what they are claiming, and because they have a lower burden of proof, 51% in this case, you might find yourself in a difficult position.

So what do you do? If you’re living under a court order, think defensively. Log your fulfillment of court ordered obligations, and keep a journal. Having your own set of “contemporaneous notes” of when you dropped the kids off, and when you picked them up, could come in handy.