I can identify the problem by phrasing it in the form of several hypothetical questions to a judge:
Is the approach to the allegations going to be, “Because these kinds of allegations are hard to prove, the standard of proof will be lowered to make it easier to prove them, even if that unfair and illegally lowered standard makes false allegations easier to get away with?”
“If Mom/Dad is innocent of these accusations, can you think of any way he/she could prove to your satisfaction that he/she is innocent, even though the burden of proof is that opposing party’s burden?
Or is this a “guilty until proven innocent, and it is impossible to be proven innocent” scenario?
Is this a situation where the analysis is: “1) The allegations are serious, even if there is little to no supporting evidence for the allegations; 2) but the court does not want to let abusive parents and/or parental alienators get away with it; 3) if I treat every accused parent as guilty, then no guilty parent will ever slip by me; and 4) so it’s better to err on the side of caution when in doubt and thus treat every accused parent as guilty”?
In other words, if innocence and the preponderance of evidence do not matter, then what is the point of holding the litigants to meeting the burden of proof? If the seriousness of the allegation trumps the substance of the evidence, why bother with evidence at all?
This is, unfortunately, all too often the reality of dealing with false allegations in divorce and child custody cases. And I don’t claim to have a magic solution for it in every case. Still, forewarned is forearmed.
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