What Is a Rebuttable Presumption? How Does It Affect My Civil Case?
Every legal case imposes a “burden of proof” on the person seeking relief. Think of it as a certain level and type of evidence required to win a case. The normal burden of proof in a civil case is a “preponderance of the evidence,” which asks, “Is the evidence sufficient to show it is more likely than not that the person is entitled to the requested relief?” If not, he loses his case.
Sometimes, the law also imposes what’s called a “rebuttable presumption,” a legal presumption that affects the burden of proof.
What is a Rebuttable Presumption?
A rebuttable presumption requires a judge to reach a certain conclusion before hearing any evidence unless the evidence later convinces the judge to reach a different conclusion.
What? Wait! Aren’t judges supposed to remain neutral and undecided until after all evidence is presented? As with many legal questions, the answer is, “Yes, unless…”
Think of a “presumption” as an assumption, reaching a conclusion before receiving all information needed to make a reliable decision. For example, in first-time divorce or paternity cases (where no prior custody decision has been made by a judge), Arkansas law requires a judge to presume that joint custody is in the best interest of a child unless the presumption is rebutted (see below).
This means that a judge cannot go into a custody hearing thinking that awarding primary custody and visitation is even an option. By law, the judge must go into the hearing thinking (presuming) that joint custody is the best for the child. That is the legal presumption required by law. However, as with all rebuttable presumptions, this presumption can be rebutted, its legal effect “overcome” or set aside.
How To Rebut the Presumption.
If the presumption is not rebutted, the judge must apply the presumption and decide accordingly. A legal presumption must be rebutted by “clear and convincing” evidence (more than a mere likelihood) supporting a different conclusion. This higher standard of proof requires evidence sufficient to lead a judge to conclude, with reasonable certainty, that the evidence weighs in favor of reaching a different conclusion.
So, if a parent does not want joint custody to be awarded, that parent must present sufficient evidence to the judge to convince the judge to abandon the presumption that joint custody is best for the child. That parent must also prove what different custody arrangement works best for the child. An example of evidence that may overcome the joint-custody presumption is proof that a parent is a registered sex offender.
How Does a Rebuttable Presumption Affect My Case?
The rebuttable-presumption component complicates your case, whether you are the the person who wants the presumption to apply or are the person seeking to rebut the presumption. This requirement holds the person attempting to rebut the presumption to a higher burden of proof and can be very confusing for persons attempting to represent themselves.
We Can Help
If you are looking for effective legal representation in Arkansas that won’t break the bank, look for us at LionLegalServices.com. We will help you figure out your options and what the likely realistic result is in your circumstances. Say the word and we’ll come Roaring to the Rescue!
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