Divorce Lawyer: Child Custody in Louisiana and the Burden of Proof

In Louisiana, to get sole custody of a child, you or your divorce lawyer must prove by clear and convincing evidence that it is in the best interest of the child for you to have sole custody.

In Louisiana law, there are generally three burdens of proofs.  The lowest standard of proof is that of preponderance of the evidence.  This means that the person with this burden need only show that his position is more likely than not to be correct.  For example, if a car has a dent on the door, then we can say it is more likely than not that it had been involved in an automobile accident.

The next burden of proof and what is used in child custody proceedings is that of clear and convincing evidence.  In order to meet this burden, a divorce lawyer must show that the thing proved was highly probable or reasonably certain.  For example, if Big Henry walks into a restaurant soaking wet, then we can say it is reasonably certain it is raining outside.

The highest burden of proof is that of beyond a reasonable doubt.  This burden is used in criminal cases, and not typically by a divorce lawyer.  For example, if a defendant is captured on videotape robbing a store, then the videotape may be evidence sufficient to prove the defendant guilty beyond a reasonable doubt.  

Clients may ask a divorce lawyer how people can win a case based the same facts in one proceeding, and then loose the same case in another.  Well, this has to do with the different burdens of proofs.  Let’s take the example used for the preponderance of the evidence burden.   Under this burden, it is significantly easier to show that a dented car was more likely than not involved in automobile accident.

But under the high burden of clear and convincing evidence, can we say it is reasonably certain that the car had been in an automobile accident?  The car could have been vandalized.  The car could have sustained hail damage.  Therefore, under the clear and convincing burden of proof, we cannot be reasonably certain that the car was involved in an automobile accident.   Hence, we have two different outcomes using two different burdens of proofs.

In child custody cases, a divorce lawyer sometimes uses the clear and convincing burden of proof.  Hence a parent seeking sole custody of his or her child must prove to a reasonable certainty that it is in the best interest of the child for the child to be with him or her.  Let’s look at an example.  Big Henry and Julie’s marriage has ended.  Each is seeking sole custody of the child.  Big Henry is a drug addict and in and out of prison.  Julie is an elementary school teacher who is a member of the church choir.  She does not smoke, drink, or do drugs.  In this case, it seems pretty clear who is going to get sole custody.  Using the clear and convincing standard of proof, we can say to a reasonable certainty that is in the best interest of the child for Julie to be awarded sole custody of the child.

Now let’s take the same facts but instead, Julie is a recovering alcoholic. Is this enough to sway the court to big Henry?  We think not.  Let’s assume Big Henry is a by-the-book person, has never been arrested, and is a member of his church choir.  Who gets sole custody?  It seems a little more complicated.

In tougher situations where both parties are equal, a trial court will look even further and go into even more depths to reach their decision.  That is why it is important to contact a divorce lawyer to flesh out the subtle advantages that you may have over your former spouse.

Everything above is written to be informational.  Please do not take it to be legal advice.  With an office in New Orleans, Will Beaumont practices family law.