The burden of proof is another way of saying: “How much you have to prove something”. If asked, most people know the burden of proof in a criminal case, which is ‘beyond a reasonable doubt’. Beyond a reasonable doubt is the universal common law rule which limits the governments power to convict someone of a crime if there is any ‘reasonable doubt’. Which begs the question: “What is the burden of proof in a custody case or parenting time case?
In the context of child custody and parenting time, court’s apply two different burdens of proof.
First, preponderance of the evidence, which is the lowest burden of proof under Michigan law, requiring evidence that the claim is more likley than not.
Second, clear and convincing evidence which requires evidence that the claim is verty highly probable.
Parenting time burden of proof.
The burden of proof in a parenting time case is preponderance of the evidence. Simply put, a modification of parenting time will be granted if there is a preponderance of the evidence under the parenting time statute to support the requested change.
Child custody burden of proof.
The burden of proof in a child custody case can be either preponderence of the evidence or Clear and convincing evidence depending upon the facts and circumstance of the case. More specifically, if a court determines that there is an established custodial environment with both parents, the burden of proof is preponderence of the evidence. However, if there is an established custodial environment with one parent, the burden of proof is clear and convincing evidence.
In every child custody case, the court must examine which burden of proof applies to the facts and circumstances.
Lawyers and Judges rely on case law for more clarity:
It is also important to remember that an established custodial environment can occur in both homes or in neither. If an established custodial environment exists, it may not be changed without a showing of clear and convincing evidence. MCL 722.27(1)(c)․
Quote, “on the contrary, if the Court finds that no established custodial environment exists, then the Court may change custody if the party bearing the burden proves by a preponderance of the evidence that the change serves the child’s best interest.” Citing: Pierron v. Pierron.
[T]he Legislature intended to minimize the prospect of unwarranted and disruptive change of custody orders and to erect a barrier against removal of a child from an “established custodial environment”, except in the most compelling cases. Citing: Baker v. Baker.
Preparation is key in every case and in order to properly prepare.
The burden of proof in a child custody case can be either preponderence of the evidence or clear and convincing evidence depending on the existence of an established custodial environment and the burden of proof in a parenting time case is preponderance of the evidence.
By: Daniel Findling (c) 2025
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