The Default Rule on Burden of Proof in Civil Cases
Parness, Jeffrey A.
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An Illinois Appellate Court recently ruled that a custodial parent requesting a court order allowing removal of a child from Illinois must be shown to be in the child’s best interests by a preponderance of the evidence, the general standard in civil cases. It reasoned that since the relevant Illinois statute did not expressly set forth a quantum of proof, preponderance was the required quantum under an Illinois Supreme Court precedent holding preponderance applicable “absent a statutorily assigned evidentiary standard.” The Appellate Court distinguished a proceeding to modify a prior custody judgment where the quantum is “clear and convincing evidence” per an explicit statute. It concluded that “a removal petition is not a petition to modify custody” and that defaulting to preponderance should occur whenever the relevant statute is silent on burden of proof. Without an explicit statute, there should not necessarily be a default rule favoring a preponderance norm for removal issues, or for all other legal issues, in civil cases. The Illinois Supreme Court ruling said to establish such a rule itself did not apply a default rule. The high court case involved the State’s petition to terminate the parental rights of a mother and father whose child was then in foster care; the termination process was said to be significantly controlled by U.S. Supreme Court precedent holding that federal constitutional Fourteenth Amendment due process requires “at least clear and convincing evidence” of permanent parental neglect. Per U.S. Supreme Court precedent, an order allowing out-of-state removal by a custodial parent of a child may be an effective termination of the parental rights of a second parent who remains in state with long recognized and utilized childcare interests that would become very difficult, if not impossible, to exercise.