Burden of Proof
The burden of proof is the duty one party has at trial to produce the evidence that will prove the claims they have made against the other party. One party is initially presumed to be correct and gets the benefit of the doubt, while the other side bears the burden of proof. When a party bearing the burden of proof meets their burden, the burden of proof switches to the other side. Burdens may be of different kinds for each party, in different phases of litigation. The burden of production is a minimal burden to produce at least enough evidence for the trier of fact to consider a disputed claim. After litigants have met the burden of production and their claim is being considered by a trier of fact, they have the burden of persuasion, that enough evidence has been presented to persuade the trier of fact that their side is correct. There are different standards of persuasiveness ranging from a preponderance of the evidence, where there is just enough evidence to tip the balance, to proof beyond a reasonable doubt, as in a criminal court.
The party that does not carry the burden of proof carries the benefit of assumption of being correct, they are presumed to be correct, until the burden shifts after presentation of evidence by the party bringing the action.
Preponderance of Evidence
In a divorce matter, if a transaction between spouses is later contested by one spouse claiming that he or she was disadvantaged, the burden is on the advantaged party to prove by a preponderance of evidence that there was no undue influence and that the transaction was not conducted in violation of his or her fiduciary duties. Marriage of Fossum (2011) 192 CA4th 336 (husband failed to establish by preponderance of evidence that wife’s signing of third quitclaim deed was freely and voluntarily made with full knowledge of all facts and complete understanding of its effect); Marriage of Haines (1995) 33 CA4th 277, 296.
As the court concluded in Haines, the burden on the advantaged spouse is to prove by a preponderance of the evidence that:
- The transaction was freely and voluntarily entered into by the disadvantaged party;
- With full knowledge of all relevant facts; and,
- With full understanding of the consequences of the transaction.
See also Marriage of Balcof (2006) 141 CA4th 1509, 1520 (presumption of undue influence by wife not rebutted regarding writing transferring husband’s community assets to wife when wife, inter alia, threatened divorce and obstruction of his relationship with children if he did not sign). But see Marriage of Mathews (2005) 133 CA4th 624, 631 (presumption of undue influence rebutted by preponderance of evidence; couple agreed that wife would sign quitclaim deed in order to obtain lower interest rate on couple’s mortgage; evidence showed that she acknowledged that title to residence would be taken in husband’s name alone).
Non-Parent Child Custody
The one exception to the preponderance of evidence standard is when a court finds that parental custody would be detrimental to a child which must be based on clear and convincing evidence before it may make an award to a nonparent over the parent’s objection. Family Code §3041(b), (d); Rich v Thatcher (2011) 200 CA4th 1176, 1179.
The “clear and convincing” standard is a finding based on “high probability,” a standard greater than preponderance of the evidence. The term was later as “requiring that the evidence be ‘so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.'” In re Angelia P. (1981) 28 C3d 908, 919. Thus, in most cases, the nonparent will prevail only in unusual or extraordinary circumstances in which parental custody is clearly and demonstrably detrimental to a child.
However, if a court finds that a nonparent who seeks custody meets the criteria of Family Code §3041(c) by a preponderance of the evidence, this finding will constitute a finding that the custody to the nonparent is in the best interest of the child and that parental custody would be detrimental to the child—absent a showing by a preponderance of the evidence to the contrary. Family Code §3041(d). The criteria of Family Code §3041(c) are that the nonparent has assumed, on a day-to-day basis for a substantial period of time, the role of the child’s parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection. There is no requirement that the parent voluntarily abandoned the child to the nonparent for Family Code §3041(c) to apply. In re Guardianship of Vaughn (2012) 207 CA4th 1055, 1070.
Once the nonparent has made that showing, then the objecting parent must demonstrate that parental custody is not detrimental and in the child’s best interest by a preponderance of evidence. Thus, when the nonparent candidate for custody can demonstrate that he or she has met the criteria of Family Code §3041(c) for a substantial period of time preceding the adjudication of custody, the entire matter is determined by a preponderance of the evidence and not by the standard of clear and convincing evidence.
Whether the standard of proof is clear and convincing or preponderance of the evidence, the burden of proof is always initially on the nonparent to demonstrate that an award of custody to that nonparent is in the child’s best interests and that parental custody is detrimental. Family Code §3041. See also In re Audrey D. (1979) 100 CA3d 34, 40. If a nonparent meets the requisite proof burden, the burden of proof shifts to the parent to prove that parental custody is in the child’s best interest and not detrimental to the child. See Family Code §3041.
The burden of proof is on the tracing spouse to keep adequate records to prove a tracing claim. Estate of Murphy (1976) 15 C3d 907, 917, superseded by statute on other grounds as stated in Estate of Scott (1987) 197 CA3d 913, 919. However, California appellate courts are inconsistent about the required standard of proof required to overcome the community property presumption of Family Code §760. Some courts have applied the clear and convincing standard (see, e.g., Weingarten v Superior Court (2002) 102 CA4th 268, 277; Gagan v Gouyd (1999) 73 CA4th 835, 843, disapproved on other grounds in Mejia v Reed (2003) 31 C4th 657, 669 n2). Other courts have applied the less stringent standard of preponderance of the evidence (see, e.g., Marriage of Ettefagh (2007) 150 CA4th 1578, 1586; Marriage of Nicholson & Sparks (2002) 104 CA4th 289, 293 (substantial evidence); see also Marriage of Mix (1975) 14 C3d 604). This is consistent with Evidence Code §115, which requires that when not otherwise provided by law, the appropriate standard of proof is preponderance of the evidence. In Ettefagh, after a careful review of the case law and an analysis of the interests at risk, the court acknowledged that the case law is “inconclusive” and concluded that a mere preponderance of evidence is sufficient to overcome the community property presumption when determining whether contested property is one spouse’s separate property.
In Resolution Trust Corp. v Rowe (ND Cal, Nov. 20, 2007, No. C 90–20114 FMS (WDB)) 2007 US Dist Lexis 89263, the court extensively discussed the split in California authority and applied the preponderance of evidence standard as stated in Ettefagh. The Resolution Trust Corp. court granted the judgment creditor’s motion for an order for a writ of execution on the assets of the judgment debtor held in a joint revocable trust with the debtor’s wife, holding that the trust brokerage account was all community property and there was insufficient documentary evidence to overcome the presumption of community property.
If the request is for the removal of the child from the child’s home, the petitioner must show by clear and convincing evidence that the grounds for removal in Welfare & Institutional Code §361(c) exist. See Cal Rules of Ct 5.570(h)(1)(A).
If a petitioner other than the department files a Welfare & Institutional Code §388 petition seeking to modify an order that reunification services were not needed under Welfare & Institutional Code §361.5(b)(4), (5), or (6) or to modify any orders related to custody or visitation of the child for whom reunification services were not ordered under §361.5(b)(4), (5), or (6), the petitioner must show by clear and convincing evidence that the proposed change is in the best interests of the child. Cal Rules of Ct 5.570(h)(1)(C).
If the person filing a petition under Welfare & Institutional Code §388(c)(1)(A) seeks to terminate court-ordered reunification services, the petitioner’s burden of proof is to show (Cal Rules of Ct 5.570(h)(1)(B)):
- By a preponderance of the evidence that reunification services have been offered or provided; and
- By clear and convincing evidence that a change of circumstance or new evidence exists for one of the following conditions (Welfare & Institutional Code §§361.5(b), (e), 388(c)(1)(A)–(B)):
- The action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur as outlined under Welfare & Institutional Code §388(c)(1)(A)–(B);
- The parent or guardian’s location is unknown;
- The parent or guardian is suffering from a mental disability that interferes with his or her ability to successfully undergo the reunification process;
- The child has been physically or sexually abused and conditions exist as outlined under Welfare & Institutional Code §361.5(b)(3);
- Through abuse or neglect, the parent or guardian of the child has caused the death of another child;
- The conduct of the parent or guardian (involving severe physical abuse) has triggered the dependency jurisdiction of the court over the child under Welfare & Institutional Code §300(e);
- The child has been found a dependent under Welfare & Institutional Code §300 because of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian and the court makes a factual finding that it would not benefit the child to attempt reunification services with the offending parent or guardian (see Welfare & Institutional Code §361.5(b)(6));
- The parent is not receiving reunification services for a sibling or a half sibling of the child as outlined under Welfare & Institutional Code §361.5(b)(7);
- The child was conceived by the commission of a lewd or lascivious act or through the continuous sexual abuse of a child (as defined under Penal Code §§288, 288.5), or by an act committed outside of this state that would be considered such an offense under California law;
- The child has been abandoned or surrendered under the conditions of Welfare & Institutional Code §361.5(b)(9);
- Reunification services have been terminated for a sibling or half sibling, or, after removal of a sibling or half sibling, the parent or guardian did not undertake reasonable efforts to treat the problems that led to the removal as outlined under Welfare & Institutional Code §361.5(b)(10);
- Parental rights of a parent over any sibling or half sibling of the child had been permanently severed and the parent or guardian did not undertake reasonable efforts to treat the problems that led to the severance as outlined under Welfare & Institutional Code §361.5(b)(11);
- The parent or guardian of the child has been convicted of a violent felony under Welfare & Institutional Code §361.5(b)(12);
- The parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol as outlined under Welfare & Institutional Code §361.5(b)(13);
- The parent or guardian of the child has advised the court that he or she is not interested in receiving family maintenance or family reunification services or having the child returned to or placed in his or her custody as outlined under Welfare & Institutional Code §361.5(b)(14);
- The parent or guardian has on one or more occasions willfully abducted the child or child’s sibling or half sibling as outlined under Welfare & Institutional Code §361.5(b)(15);
- The parent or guardian has been required by law to register as a sex offender under specified federal law as outlined under Welfare & Institutional Code §361.5(b)(16); or
- The parent or guardian is incarcerated or institutionalized and, as under Welfare & Institutional Code §361.5(e), the court has determined reunification services would be detrimental to the child.
If the request is for visitation with a sibling who is not a dependent of the court, the court may grant the request unless the court determines that the sibling remains in the custody of a mutual parent who is not subject to the court’s jurisdiction or that sibling visitation is contrary to the safety and well-being of any of the siblings. Cal Rules of Ct 5.570(h)(1)(E).
Child Custody Modification
Other requests require a preponderance of the evidence to show that the child’s welfare requires the modification. Cal Rules of Ct 5.570(h)(1)(D). For example, if the department seeks to remove a child from de facto parents, the preponderance of the evidence standard is used instead of the clear and convincing standard, because de facto parents do not have the same rights as parents or legal guardians. In re M.V. (2006) 146 CA4th 1048, 1059. See Cal Rules of Ct 5.570(h)(1)(D).
The petitioner for modification has the burden of showing by a preponderance of the evidence that the modification is warranted. Cal Rules of Ct 5.570(h)(1)(D); In re Jasmon O. (1994) 8 C4th 398, 415; Nahid H. v Superior Court (1997) 53 CA4th 1051, 1068. See In re Kimberly F. (1997) 56 CA4th 519, 527. When the department seeks to terminate a parent’s visitation rights, the court must decide whether visitation would be detrimental to the child by using the preponderance of the evidence standard. In re D.B. (2013) 217 CA4th 1080, 1089 (standard applied at post reunification phase); In re Manolito L. (2001) 90 CA4th 753, 760 (standard applied pending selection and implementation hearing). The grounds on which the court may grant a Welfare & Institutional Code §388 petition are articulated in Cal Rules of Ct 5.570(e).
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