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Tag: preponderance of evidence

What Would I Say, if I Were a Judge or Commissioner Hearing a Protective Order Request Case and I Denied the Request for the Protective Order?

I would say this:

By law I cannot grant a request for a protective order unless a preponderance of the evidence supports the request.

If the request lacks the support of a preponderance of the evidence, then the law prohibits me from granting it, even if I desired to grant it in spite of the law. I have no desire to act in spite of the law.

It is tempting to grant a protective order unsupported by a preponderance of evidence on a “better safe than sorry” basis, but that temptation’s ultimate end is, as is true of all temptations, evil. Abusing the law to provide protection from ostensible cohabitant abuse would be rank hypocrisy.

Finding a petitioner has not met the burden of proof does not mean either 1) the petitioner is or is not, in fact, a victim of cohabitant abuse; or 2) the respondent did or did not, in fact, commit cohabitant abuse.

If any protective order petitioner is in fact a victim of cohabitant abuse, then I suggest that the petitioner take all reasonable, necessary, and legally permissible measures available to the petitioner for the petitioner’s protection. A protective order is certainly not the only or the most effective protective measure a cohabitant abuse victim can or should take. A sheet of paper or an image on a screen cannot deflect fists, feet, clubs, knives, or bullets. A protective order is only as effective as it is duly enforced, but unfortunately, “When seconds count, the police are just minutes away.” For your own sake be resourceful. Do not become a victim of your own inaction.

If a protective order respondent is, in fact, innocent of the allegations made against the respondent, then I extend to all such respondents this court’s apologies for the stigma that may, and almost certainly will, attach to and dog the respondent for who knows how long as the result of being falsely accused. Fraudulently sought protective orders are all too common, and everyone in the legal system knows it.

If a protective order respondent is, in fact, a cohabitant abuse perpetrator whom the preponderance of evidence standard unwittingly abetted, then I hope and suggest you seize on this opportunity to sin no more. You may not be so lucky next time.

The first courtroom I set foot in as a lawyer had these two statements written on its walls: “Know thyself. – Socrates” and “Control thyself. – Cicero”. I commend this advice both to the petitioner and to the respondent.

Having reviewed the admissible evidence presented to me on the petitioner’s request for a protective order and having found that the petitioner has not met the preponderance of evidence burden of proof, the request must, therefore, necessarily be and is denied.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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We Can Call It the “Presumption of Guilt Act”

Did you see this in the news in Utah (from the Salt Lake Tribune)?

A Utah man never hit his wife — until he tried to kill her. But how he treated her was a warning sign.

Saying that the proposed “coercive control” legislation is needed because of the “failure of the courts” to detect crime makes no sense. It’s not a judge’s job to detect crime. It’s the police and prosecutors’ jobs. The judge applies the law to the facts and the evidence and renders judgment.

Moreover, by its nature crime occurs in the shadows. It’s going to happen no matter how much anti-crime legislation is passed. Otherwise stated, crime does not occur due to a lack of laws on the books. Legislation might help to punish crime, but isn’t much a deterrent to crime (and never has been).

The idea that we “must work toward” zero domestic violence is absurd. Domestic violence has always occurred and always will in an imperfect world. Thus, domestic violence is going to occur regardless of how many laws are passed “in opposition to” it.

Proposed statutes like this can “work” only by having the public and law enforcement and the courts indulge in a mass group delusion.

Laws like this will result in a presumption of guilt as a way of getting rid of the pesky preponderance of evidence standard of proof and letting “better safe than sorry” and “abundance of caution” and “guilty until proven innocent” rule. Miraculously, this new not-a-real-standard standard will create a new class of abuser (i.e., those who self-proclaimed victims subjectively deem to be abusers and that the courts will treat as abusers unless and until the presumed abuser proves otherwise).

Perversely, proponents of such a bill will claim that it is reducing domestic violence by increasing arrests, prosecutions, and convictions–but at the cost of throwing the presumption of innocence and a preponderance of evidence and or beyond a reasonable doubt standards out the window. Not just thrown out the window, but shot at high velocity out the window beyond retrieval. This would create a net that will end up snaring innocent people who will be falsely accused and convicted in the name of “better” detection and prevention.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How can a mother leave the father of her baby and get full custody, when she does not trust him to look after the baby by himself?

How can a mother leave the father of her baby and get full custody, when she does not trust him to look after the baby by himself? The mother (or any parent in such a situation) would need to prove, by a preponderance of evidence, to the court that the father (or other parent) is sufficiently unfit to be entrusted with the child. Simply telling the court “I don’t trust the other parent” is not enough, not even close to enough to persuade the court.

The mother would need to provide the court independently verifiable facts that show the father is either unable or unwilling to provide adequate care and attention and supervision of the child. A court cannot award a parent sole legal and/or sole physical custody of a child without first finding there is sufficient evidence to justify such an award (or at least cannot do its job properly without first finding there is sufficient evidence to justify such an award).

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How can I get full custody, when I don’t trust the other parent with the baby?

How can my friend leave the father of her baby and get full custody, when she doesn’t trust him to look after the baby by himself?

The mother (or any parent in such a situation) would need to prove, by a preponderance of evidence, to the court that the father (or other parent) is sufficiently unfit to be entrusted with the child. Simply telling the court “I don’t trust the other parent” is not enough, not even close to enough to persuade the court. The mother would need to provide the court independently verifiable facts that show the father is either unable or unwilling to provide adequate care and attention and supervision of the child.

A court cannot award a parent sole legal and/or sole physical custody of a child without first finding there is sufficient evidence to justify such an award (or at least cannot do its job properly without first finding there is sufficient evidence to justify such an award).

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-can-my-friend-leave-the-father-of-her-baby-and-get-full-custody-when-she-doesn-t-trust-him-to-look-after-the-baby-by-himself/answer/Eric-Johnson-311?prompt_topic_bio=1

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How can we change divorce court to make it easier on the children?

  • Institute a “loser pays the prevailing party’s attorney’s fees” rule.
  • make divorce cases more litigant focused and tailored to meeting their needs and the needs of their family, instead of tailoring the cases for the convenience of the courts and lawyers;
  • focus making divorce cases take less time to work their way through the court system. This reduces anxiety and emotional distress, reduces costs, promotes just and equitable outcomes, and helps prevent other abuses of the legal system caused by delays;
  • require judges to make commendably detailed written findings of fact and conclusions of law to support their rulings on every issue in a divorce case;
    • rather than make the standard a negative one (e., the ruling stands unless it can be shown to be an abuse of discretion) require that they show that their rulings are as equitable as they could reasonably make them for the parties and their children under the circumstances;
  • subject to rigorous, forensic psychological examination and evaluation every litigant in a divorce case in which child custody is an issue and where accusations of any kind of physical, emotional/psychological, sexual, financial, or any other kind of abuse of spouse or children are made.
    • Find out whether the allegations are true
    • Find out if the accusations are sincere or motivated by malevolence and/or intent to defraud the court
    • Why? Because:
      • if you are falsely accused of abuse, it will be the seriousness of the allegations, as opposed to the substance of the evidence, that will determine how your judge rules.
      • far, far too often courts, when confronted with allegations of abuse, take the easy way out and err on the side of caution. What I mean is that the courts will analyze the situation like this: “I don’t want to determine that there is insufficient evidence to support these abuse allegations only to have a child or ex-spouse wind up in the hospital or dead later. If that happens, then it looks like I failed to protect the ex-spouse and/or child, which will look like I failed to do my job competently. I may end up the subject of news reports that humiliate and embarrass me and lays my job as a judge in jeopardy. But if I take a “better safe than sorry” approach, then while I will be violating my oath of office by infringing on the parental rights of a parent who I am not convinced is an abuser (and thus denying the children that parent’s loving and beneficial impact on their lives), that would be nigh onto impossible to prove (and stories like this rarely makes the news anyway), and I so I all but completely avoid the risk of being faulted for failing to protect. That settles it. I will err on the side of caution.” That’s a gross miscarriage of justice, but it’s far too often what judges do in these circumstances.
    • All but mercilessly punish litigants and witnesses who lie to the court. The purpose of our justice system is to get to the truth and then apply the law based upon the facts as best we can know them. “Perjury is considered a serious offense, as it can be used to usurp the power of the courts, resulting in miscarriages of justice.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-can-we-change-the-court-system-in-order-to-make-divorces-easier-on-the-children/answer/Eric-Johnson-311

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What evidence do you need to get a protection order against someone?

What evidence do you need to get a protection order against someone?

In all seriousness: virtually none.

In Utah (where I practice law), as long as one seeking a protective order can convince the court:

OR

one can get a protective order.

So what is the standard of proof to show abuse, substantial likelihood of abuse, or imminent danger of abuse?

Preponderance of evidence.

“And what is preponderance of evidence?” you may ask.

  • See Harken Sw. Corp. v. Bd. of Oil, Gas & Mining, 920 P.2d 1176, 1182 (Utah 1996), defining preponderance of the evidence as “more likely than not.”;
  • [P]reponderance of the evidence standard “means the greater weight of the evidence, or as sometimes stated, such degree of proof that the greater probability of truth lies therein.” Handy v. United States Bank, Nat’l Ass’n, 2008 UT App 9, ¶ 25, 177 P.3d 80 (internal quotation marks omitted).
  • The greater weight of the evidence, or as sometimes stated, such degree of proof that the greater probability of truth lies therein. Alvarado v. Tucker, 2 Utah 2d 16, 268 P.2d 986, 988 (1954) (citing Burnett v. Reyes, 118 Cal.App.2d Supp. 878, 256 P.2d 91, 93).
  • A choice of probabilities does not meet this requirement. It creates only a basis for conjecture, on which a verdict of the jury cannot stand. Alvarado v. Tucker, 2 Utah 2d 16, 268 P.2d 986, 988 (1954) (citing Franklin v. Skelly Oil Co., 10 Cir., 141 F.2d 568, 153 A.L.R. 156).
  • A preponderance of the evidence “requires that the evidence be such that reasonable minds acting fairly thereon could believe that the existence of the fact is more probable or more likely than its nonexistence,[[4] McCormick on Evidence, Sec. 319; Alvarado v. Tucker, 2 Utah 2d 16, 268 P.2d 986.] so that a person of ordinary prudence could believe the fact with sufficient assurance to act upon it in relation to matters of serious concern in his own affairs. (Morris v. Farmers Home Mut. Ins. Co., 500 P.2d 505, 507 (Utah 1972).

But preponderance of evidence is plainly not the standard the courts actually utilize when issuing the ex parte protective order or the permanent order.

Instead, most courts apply a more cowardly, more expedient standard of proof that I refer to as the “better safe than sorry”, the “overly cautious,” or the “what’s in it for me?” standard. The thinking of a court that operates under this standard usually goes as follows:

  1. If the protective order applicant is telling the truth about abuse or imminent abuse or likelihood of abuse, then obviously a protective order should issue;
  2. But in this case (as is the case with most protective order applications), there isn’t incontrovertible evidence of abuse or imminent abuse or even a likelihood of abuse. I’m simply dealing with a matter of the applicant’s word against the accused’s;
  3. I can’t tell who’s telling the truth here. Either story could be true or false. But that means the applicant has not carried her burden of proof, and so she loses the argument, and the protective order cannot be granted;
  4. But if I deny the protective order and next week the applicant winds up in the hospital or the morgue, then I’ll catch hell in the news media for “failing to protect” the victim, even though any reasonable person would agree that the evidence of abuse was equivocal at best. I might feel terrible. I might even lose my job;
  5. And if I grant a protective order against an innocent person, no one will really notice or care or hold me accountable. “Judge grants protective order and nobody suffers” just doesn’t make the headlines, but “Judge denies protective order, and baby dies” will blow up the Internet. Indeed, if I grant the protective order I might actually be lauded in the news media for being a “protector of the vulnerable” ;
  6. I can either uphold the preponderance of evidence standard and deny the protective order, or I can ignore the preponderance of evidence standard and do the safe, expedient thing that shields me from being accused of “failing the victim.”
  7. So as it applies to me, there’s virtually no upside if I deny the protective order and almost nothing but plenty of upside if I grant the protective order;
  8. Better safe (for me, as well as for the applicant) than sorry. Better that the innocent guy (it’s a guy 99% of the time) be shamed and shunned and left with his reputation in tatters than having to defend myself against denying a protective order for lack of a preponderance of evidence. I’m not going down over a denied protective order.

So as long as you state the necessary magic words in your application for a protective order, you will likely get it, regardless of whether you have sufficient evidence to support your claims.

And thus the overwhelming majority of the courts hand out protective orders like stale candy.

The courts and the professional victim lobby stand on a mountain of innocent people victimized by fraudulent protective orders to uphold their cynical, illegal policy. It’s understandable, but by no means excusable. If a judge rejects the standard of proof, then it is no protection to the innocent.

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

“But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

― John Adams

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-evidence-do-you-need-to-get-a-protection-order-on-someone/answer/Eric-Johnson-311

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