Burden of Proof

This article was written by featured Family Law Attorney Michael H. Gora.

Q: My wife and I are getting a divorce. The finances are pretty cut and dry.  We’ve been married for twenty years.  I have a good job at good pay, and she has never worked.  We have three children under eighteen in private school.  We have savings, retirement funds, a house in Boca, and a house in North Carolina.

Her addiction to alcohol and drugs has brought this to a head, and created an unsafe environment for the kids. We are battling over custody and control of the children.   I want total control.  I want to be the sole residential parent, stay in the home, make all of the decisions, and require visitation to be limited and supervised until she has beaten her problem.

My lawyer has tried to explain the term “burden of proof” to me.  I do not understand exactly what that means and the different burdens of proof required to win my case.  Please explain.

A: There are three recognized burdens of proof under Florida law.  Under the criminal law the government (State or Federal) must prove its case “beyond a reasonable doubt” in order to convict a citizen of a crime.  This is the highest standard of proof and the reason that it is very hard to convict defendants in criminal court.  The standard is high because the penalties for conviction, loss of freedom, or even death are so invasive.

On the other hand, in general civil cases, such as your divorce case, the standard of proof usually requires proof by a “preponderance of the evidence”, also called “greater weight of the evidence.”  In jury cases, lawyers demonstrate this with scales of justice indicating that such proof only requires tipping the scales a little bit in your direction to prove an issue, as opposed to the state’s burden in a criminal case, which requires the State to tip one side of the scale all the way to the bottom.

The third burden of proof occasionally used, on specific issues, is call proof by “clear and convincing evidence.”  Such proof is defined as evidence that is “credible, clear, and lacking in confusion such that the judge is convinced of the matter’s truthfulness without hesitancy.”

In your custody case, the evidence that you need to win sole custody of your children, use and occupancy of your home, and supervised visitation for your wife because of her addiction is the standard in civil court, preponderance or greater weight of the evidence.  However, burden of proof also describes which party’s job it is to prove an issue, or overcome a legal presumption.

In Florida “custody matters” the statute creates a presumption that both parents shall have “shared parental responsibility” over their children.  Therefore, to win “sole custody” or “sole parental responsibility” your proof must overcome this presumption by proving to the judge that shared parental responsibility would not be in the best interests of your children because of your wife’s addiction.  To write an opinion, which will survive an appeal the judge, must make specific findings of fact on this issue.

Such facts may include proof of a physician’s diagnosis of your wife’s condition and proof of specific dangerous circumstances that the children have faced as the result of the addictions you mentioned.

Technically, it is not necessary for your evidence to reach the “clear and convening” level.  Of course, the stronger evidence you produce of the harm which has occurred or is likely to occur to your children the more likely it is that you will win your case.  The higher standard of clear and convincing evidence is necessary if an individual or the state is trying to terminate parental rights under Chapter “39.” of the Florida statutes, not under the dissolution of marriage law found in Chapter “61.”

Michael H. Gora, divorce attorney, has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law and  practices as  a partner with Shapiro Blasi, Wasserman & Gora in Boca Raton, Florida P.A.