When fighting for custody in a Michigan divorce or custody case you have an obligation to prove your claims with evidence. This obligation is called the burden of proof.
The different Michigan child custody burden of proofs are:
- Clear and convincing evidence which requires evidence that the claim is very highly probable; and
- Preponderance of the evidence which requires evidence that the claim is more likely than not.
These different burden of proofs apply to different fact patterns depending upon the existence of an established custodial environment.
When a Michigan divorce or custody judge makes a child custody decision, it must examine the best interest of the child factors (MCL 722.23) using either clear and convincing evidence or preponderance of the evidence burden of proof.
Simply put, the clear and convincing evidence standard is a much higher burden of proof, a heavy burden, intended to minimize the prospect of unwarranted and disruptive changes and preponderance of the evidence standard is a much lower burden of proof, making it far easier to prove than the clear and convincing evidence standard.
The leading cases on burden of proof in Michigan child custody cases are:
Preponderance of the evidence cases:
- Pierron v. Pierron 486 Mich 81 (2010); Hall v. Hall, 156 Mich App 286 (1986). These cases stand for the notion that if no established custodial environment exists, custody may be modified by showing of preponderance of the evidence burden of proof using the best interest factors identified in MCL 722.23.
Clear and convincing evidence cases:
- Baker v. Baker, 411 Mich 567 (1981). The clear and convincing evidence standard is a heavy burden intended to minimize the prospect of unwarranted and disruptive changes.
- Duperon v. Duperon, 175 Mich App 77 (1989); Ardt v. Kasem,156 Mich App 706 (1986). These cases stand for the notion that if an established custodial environment exists, a change in custody can only be made upon clear and convincing evidence burden of proof utilizing the best interest factors.
- Carson v. Carson, 156 Mich App 291 (1986). Proof that the father had a better standard of living, was less tardy than the mother and was more conscientious than the mother did not meet the clear and convincing evidence burden of proof utilizing the best interest factors.
- Heid v. Aaaulewski, 209 Mich App 587 (1995). Equality or near equality on all the factors did not meet the clear and convincing evidence burden of proof utilizing the best interest factors.
- Harper v. Harper, 199 Mich App 409 (1993). More than margial change in a child’s life is required to justify a change under the clear and convincing evidence standard utilizing the best interest factors.
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By: Daniel Findling