Emergency, Temporary Change of Custody - Standards and Quantums of Evidence

Judges, lawyers and litigants, all need a "standard" consistently applied to emergency temporary change of custody motions. Currently, there is a writ pending before the Oklahoma Supreme Court aimed at providing that very standard. Assuming the S.Ct. actually assumes original jurisdiction and does not "dodge" the issue, we will all have a guide-post by which to determine or advise clients. Most attorneys agree that the moving party - the one seeking the emergency, temporary change of custody - has the burden of proof. However, Oklahoma law does not currently provide: 1) An enumerated legal standard for emergency, temporary change of custody; 2) A quantum of evidence with which the moving party must meet the standard. Judges are free to create an arbitrary standard. Many Oklahoma County Judges use the standard of "irreparable harm." That standard comes from the more general civil standard used in Preliminary Injunctions. It was intended to be used for civil matters, not to define the well-being or best interest of our children. Essentially, in a family law scenario, that standard is unattainable. A more in-depth review of "irreparable harm" is necessary - what constitutes irreparable harm? Harm that cannot be cured by payment of money? If that is the definition, how is it that an Oklahoma County Judge, recently found the physical and/or psychological harm emanating from K-9 fecal matter covering the house in which a child was kept did not amount to "irreparable" harm? Perhaps because this Judge also applied some quantum of evidence requirement that he failed to enumerate?

Hmmm ... what is a "quantum of evidence?" That is more familiar as: 1) Beyond a reasonable doubt; 2) Clear and convincing evidence; or 3) Preponderance of the evidence. The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision (Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808 [U.S.Tex.,1979]; See also In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 [1970] [Harlan, J., concurring]).

Obviously, the non-moveant is most protected if the moving party has the burden of proving their case by the first quantum - beyond a reasonable doubt. That standard applies to the guilt or innocence of a criminal defendant (Hogan v. State, 139 P.3d 907, 923 [Okla.Crim.App.,2006]). The clear-and-convincing standard is employed in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interest at stake in those cases is deemed to be more substantial than mere loss of money and some jurisdictions reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff's burden of proof (Johnson v. Board of Governors of Registered Dentists of State of Okl., 913 P.2d 1339, 1345 [Okl.,1996]). The parties equally share the risk with the third quantum - preponderance of the evidence (Id.). What quantum of evidence was applied in the K-9 fecal case? We do not, and will never, know. It was not specifically enumerated on the record and current law establishes no specific quantum as applied to emergency, temporary change of custody actions.

It seems that the problem, when one understands the purposes intended to be served by enumerated legal standard and quantum of evidence, suggests the answer. The more general standard of "best interest of the child", should be applied to ordinary change of custody motions (assuming the Gibbons standard of permanent, substantial, material change of condition(s) have been met). Emergency, temporary change of custody motions, however, imply by their very nature that a temporary change is in the best interest of the child(ren). Thus, a good standard and quantum for emergency, temporary change of custody could be:

"Actual physical or psychological harm to a parent or child proven by preponderance of the evidence" or "A credible threat of physical or psychological harm to a parent or child proven by clear and convincing evidence."

First, one need not - and would not likely be able to - prove actual, or a credible threat of physical or psychological harm beyond a reasonable doubt. Setting such a high quantum would result in many children remaining in harm's way while investigations are conducted. During the conduct of investigations, at-risk children could be permanently harmed. Thus, beyond a reasonable doubt is not an appropriate standard for an emergency, temporary change of custody. Since a "threat of harm" is less concrete than "actual" harm, the quantum of "clear and convincing" is most appropriate. This standard liens toward protecting the party from whom custody is potentially being removed - a change of custody is more than the loss of mere money and could potentially harm the non-moveant's reputation. Proving actual harm is a bit easier, i.e. bruising, police reports, expert testimony etc. When dealing with actual, physical harm all the evidence is in plain view and the parties should equally bare the risk of error. Thus, the lesser standard of preponderance of the evidence is most appropriate.

A legal standard determines the substance sought (i.e. gold), while the quantum of evidence determines the size of screens built into the legal sifter. The suggested standard would permit lawyers to accurately assay their clients' circumstances and determine when an actual "emergency" exists. It would also permit Judges, especially when an ex parte motion requires temporary deprivation of substantive and procedural due process, to provide more consistent and well reasoned results until all parties can have "their day in court."

The question of appropriate legal standard and applicable quantum of evidence is clearly a question capable of repetition while evading review. Hopefully, even if the pending writ is mooted by litigant conduct, the S.Ct. will answer the question. Enumerating a legal standard and quantum of evidence for emergency, temporary change of custody will result in consistency of decisions and, thus, will decrease acrimonious and costly litigation. The best interests of Oklahoma children will be best served by an established standard/quantum applied in an even-handed manner.