Raising the Burden of Proof for Child Custody

There are two main types of child custody in North Carolina: joint and exclusive/sole. In our state, the court’s job is to determine which parent serves the best interests of the child, after hearing and weighing all the evidence. The standard is probably uniform across all jurisdictions at this point. But what still fluctuates is when the court should award non-joint custody.

Arkansas recently enacted a bill that sets a rebuttable presumption that joint custody does indeed serve the best interest of the child. In order to rebut the presumption, one party must show clear and convincing evidence to the court that joint custody is not in the best interest of the child (or the parties have come to an agreement regarding all issues of custody, or one party does not request to have custody).

There are three major sets of burdens of proof that are commonly referred to in the law: a preponderance of the evidence, clear and convincing, and beyond a reasonable doubt. A preponderance of the evidence is also regarded as some amount over 50%. Beyond a reasonable doubt is a standard most often used in criminal law and is supposed to be a very heightened standard that requires the finder of fact (jury or judge) to have no other reasonable explanation after reviewing the evidence. Clear and convincing was defined in 1984 by our Supreme Court to mean evidence that is substantially more likely to be true than untrue. It sits in the medium tier of burdens of proof, and each jurisdiction will craft laws that define the boundaries of “more likely true than not.”

The new Arkansas standard then seems higher than the one in North Carolina. Our statutes do not set a burden of proof that one party must meet before sole custody is granted. Instead, our trial judges are granted wide discretion in crafting custody orders; most of our case law states that the determination of the trial judge will not be disturbed absent clear abuse of discretion. As long as there is competent evidence to support the best interest test that was utilized at trial, then the trial judge will not be overruled. Some courts have gone further to say that unless the decision of the judge is manifestly unsupported by reason, the appellate court will not disturb the decision. This standard seems more akin to the preponderance standard, leaving more flexibility for the trial judge. The new Arkansas law will definitely make sole custody harder to achieve unless it was very apparent from the beginning that one parent would not be able to serve the best interest of the child.

It is an interesting development that, according to Arkansas legislators and advocates, is based on research that concluded that more shared custodial time and cooperative parents tend to equate to better results for children’s welfare. Should North Carolina adopt similar standards of proof for parents seeking sole custody? If sole custody is an issue in your divorce and separation, please contact a family law specialist to consider your options.