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Family Law Issues Requiring Clear & Convincing Evidence




The American justice system relies on the use of empirical evidence to prove certain issues before the court exercises its authority to legally compel an individual to do something. In civil disputes, the party requesting relief has the burden of proving their claims and allegations. This requires them to submit sufficient evidence in support of their claim.

The quality and quantity of evidence necessary to successfully prove a claim depends on the stakes involved.

For example, the prosecution in a criminal case must provide “proof beyond a reasonable doubt” that the defendant committed the crimes for which they have been charged. This is the highest standard of proof recognized by our judicial system because the defendant’s freedom is at stake. The societal harm of punishing an innocent person while the true criminal remains free to commit additional crimes is also at stake.

In contrast, the plaintiff in a civil case only needs to prove their case “by a preponderance of the evidence.” Courts have interpreted this to mean that the plaintiff only needs enough evidence to show that the defendant is more likely than not liable.

In California, most family law issues implicate the “preponderance of the evidence” standard used in most civil cases. However, some family law issues require “clear and convincing evidence.” This standard is higher than a preponderance of the evidence, but not as strict as “proof beyond a reasonable doubt.”

In family law, whether to impose the higher clear and convincing evidence standard depends on the interests of the parties at stake. Since the interests of the parties in a family law matter can vary depending on the circumstances, it can be difficult to determine when it is appropriate to impose a higher evidentiary standard.

Property Issues Requiring Clear and Convincing Evidence

A person contesting the ownership of property evidenced by legal title must submit clear and convincing evidence rebutting the legal presumption that the title holder is the proper owner. California Evidence Code § 662 provides that “the owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.”

For example, a husband claiming a community property interest in his wife’s separate property home but demonstrate by clear and convincing evidence that the wife intended to convert her separate ownership interest into a community ownership interest.

The following are common family law issues where California courts have required clear and convincing proof:

  • Waiving a significant property rights: If the law grants specific property rights to a person, a claim that someone waived those rights must be supported by clear and convincing evidence. When a person’s property rights are important enough to warrant specific recognition or protection under the law, claims that a person gave up those rights cannot be supported by doubtful evidence.
  • Spousal support after remarriage: A party’s obligation to pay spousal support automatically terminates if the supported party remarries. However, the parties can form an agreement that remarriage does not terminates the other party’s spousal support obligations. Courts have held that such an agreement must demonstrated by clear and convincing evidence.
  • Termination of parental rights to a dependent child: A child may be placed in the custody and care of the juvenile court in situations such as where their parents have deserted or neglected them. However, the court can only terminate the parental rights of a dependent child’s birth parent if there is clear and convincing evidence that the child has a good chance of being adopted within a reasonable time.

Consult Moshtael Family Law for Legal Counsel

Legal issues regarding adoptions and the termination of parental rights can be tricky to navigate and understand. As a result, you should seek the professional services of a licensed attorney to advise you on adoption matters. At Moshtael Family Law, our legal team is dedicated to the practice of family law. With more than a century’s worth of combined legal experience, you can count on us to delivery effective legal counsel and advocacy to help protect your legal interests.

Please call Moshtael Family Law at (714) 909-2561 or contact us online to schedule an initial consultation exploring the details of your case today.

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