language

[antonin]

This language appears in a recent "presumption of joint physical custody" bill that
was signed by the Govenor in Iowa today:

"shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child."

1. is the standard of proof required by the abovementioned phrase closer in meaning to

"a preponderance of the evidence" or "clear and convincing evidence?"

[socrateaser]

>This language appears in a recent "presumption of joint
>physical custody" bill that
>was signed by the Govenor in Iowa today:
>
>"shall be accompanied by specific findings of fact and
>conclusions of law that the awarding of joint physical care is
>not in the best interest of the child."
>
>1. is the standard of proof required by the abovementioned
>phrase closer in meaning to
>
>"a preponderance of the evidence" or "clear and convincing
>evidence?"

Neither...a legal "presumption" merely places an initial burden on the party against whom the presumption works, to produce sufficient evidence to "overcome" that presumption. In this instance, if there is a presumption of joint physical custody, then a parent who opposes joint, must produce sufficient evidence to cause the trier of facts to believe that joint custody may not be in the child's best interests. Once the presumption is overcome, it then falls to the other parent to produce sufficient evidence (or defeat the evidence already presented) to show that joint custody is, once again, in the child's best interests.

A "preponderance of evidence" means that the evidence actually produced, must be sufficient to show that one party's position is more likely true than not. If the scale is tipped in a party's direction in the slightest amount, then that party wins the issue (or the case).

"Clear and convincing evidence" means that the evidence is "substantially" weighted in favor of one party. Tipping the scale slightly isn't enough -- the proof of an issue or case must be fairly obvious. This burden of proof is reserved for civil cases where there is a great deal at stake, e.g., complete termination of parental rights, and suits for intentional misrepresentation (fraud), where the court may award punitive damages against a defendant.

And, just to be complete, "beyond all reasonable doubt" is a burden of proof required when a person's physical life or liberty is in the balance (criminal prosecutions).

Anyway, the IA legislation to which you refer is one of those "feel good" kinds of laws that the government can trumpet as a step towards more equity in family law. In practice, such text is meaningless, because the court can award one parent 99% custody and the other parent 1%, and it will still be referred to as "joint physical."

When you see a state pass legislation that says, "No parent shall be denied equal physical responsibility for their minor child by the court, except upon a showing, that said parent would be denied physical responsibility even in the absence of the other parent," THAT'S when you'll know that things have finally changed.

Until then, it's all politics as usual.