Preponderance of Evidence Standard
Under some circumstances use of the low preponderance of evidence standard may be a violation of constitutional rights. For example, if a state seeks to deprive natural parents of custody of their children, requiring only proof by a preponderance of evidence is a violation of the parents’ DUE PROCESS rights (Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 ).
Freedom in matters of family life is a fundamental liberty interest, and the government cannot take it away with only a modest evidentiary standard.
However, a court may use a preponderance of evidence standard when a mother seeks to establish that a certain man is the father of her child (Rivera v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 ).
Most states use the preponderance of evidence standard in these cases because they have an interest in ensuring that fathers support their children.
One is free from Government involvement: Also, California law confers discretion on the court to grant “reasonable visitation” rights “to any other person [a non-parent] having an interest in the welfare of the child.” [Ca Fam § 3100(a) –“reasonable visitation may be ordered to any other person . . .” (emphasis added); Barkaloff v. Woodward (1996) 47 Cal.App.4th 393, 398, 55 Cal.Rptr.2d 167, 170], get familiar with this: “However, this right is limited.
Parents have a 14th Amendment substantive due process “fundamental right” (a “liberty interest”) to make decisions concerning the care, custody and control of their children. A state law that, as applied, allows trial courts to grant nonparent visitation rights over a parent’s objection whenever the court determines such visitation may serve the child’s best interest, unconstitutionally infringes on that right. [Troxel v. Granville (2000) 530 U.S. 57, 65-70, 120 S.Ct. 2054, 2060-2062 (invalidating application of Wash. statute authorizing grandparent visitation solely on “best interest” showing] ”
Read more at www.leginfo.ca.gov