The Default Rule on Burden of Proof in Civil Cases

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. For those uninterested in making every burden of proof issue a constitutional one when the relevant statute is silent, any default rule to preponderance should still be deemed nonabsolute. General Assembly intent as to quantum in one setting can be inferred sometimes from legislative intentions in very comparable settings. It seems reasonable to infer that the General Assembly desires the same burden of proof norm in certain parental removal/relocation cases, that is, cases involving residential moves that effectively, or very severely, limit the parent-child relationships of nonmoving parents. Other statutes have been interpreted by references to related statutes, especially if very undesirable results will otherwise follow. Thus in 2001, the Illinois Supreme Court found the “legislature intended” for the clear and convincing evidence norm of the Sexually Violent Persons Act to apply to recovery proceedings under the Sexually Dangerous Persons Act. Of course, legislators can always later choose to reject such judicial interpretations, assuming rationality and no infringement of individual rights. If statutory silence on the quantum of proof prompts no constitutional mandate, and if no reasonable inferences of General Assembly intent are decipherable, a rigid preponderance default norm still presents problems. Beyond due process mandates, assessing the appropriate burden of proof should require a further balancing of “the private interests affected by the proceeding;” the “risk of error” created by the use of the preponderance norm; and the governmental interest supporting the use of preponderance. Sometimes the balancing will indicate that more than a preponderance of evidence should be required, as when civil case resolutions require findings on quasi-criminal or criminal acts, or findings that will necessarily intrude significantly upon personal privacy interests. Upon such balancing, there are a variety of available standards beyond preponderance and clear and convincing, including “clear preponderance” and beyond a reasonable doubt. The absence of an explicit statutory articulation of a burden of proof should not necessarily prompt utilization of the preponderance norm. Constitutional mandates on procedural due process may prompt higher standards, as may implicit General Assembly choices in related settings. In their absence, judges should be able to employ a nonconstitutional balancing test to forge a burden of proof norm going beyond preponderance, subject to some General Assembly oversight.