Every legal case imposes a “burden of proof” on the person seeking relief. 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, the person seeking relief loses the case.

Sometimes, the law also imposes what’s called a “rebuttable presumption”, which is a legal presumption that affects the burden of proof.

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. But 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. This means that a judge cannot go into a custody hearing thinking that awarding primary custody and visitation is even an option, unless the presumption is rebutted.

Rebutting the Presumption

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 convince a judge with reasonable certainty that the evidence weighs in favor of reaching that different conclusion.

If a parent does not want joint custody to be awarded, that parent must present sufficient evidence to the judge to convince them 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 person who wants the presumption to apply, or the person seeking to rebut. This requirement holds the person attempting to rebut the presumption to a higher burden of proof, and can be very confusing for anyone attempting to represent themselves.

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