What is the Standard of Evidence in the Alec and Lydia Act?

The law has now changed to protect children and the abused parent when there is domestic violence. It is important to know what you have to prove and what the standard of evidence is. The standard of evidence is how much do you have to prove to be believed by the court. For instance, we all know the criminal standard, “beyond a reasonable doubt.” Well family law has standards also, but none that strict. There are two: “clear and convincing” and “preponderance of the evidence.”

What do the standards mean? In law school, they teach that preponderance is more likely than not. And clear and convincing is about 80%, where the criminal standard is 100%. Under the Alec and Lydia Act, the standard is not the same at every step. It changes depending on what is being decided and who has the burden. Understanding those differences helps parents know how to make their case.

Here is how the standards work under the new law, and where each one comes from in the statute.

There is more than one standard and that is the key to understanding the Act

Most people assume a case has a single burden of proof. The Alec and Lydia Act does not work that way. It sets three separate evidentiary moments, each with its own standard. The three moments: 1. proving that domestic violence happened. 2. Rebutting the presumption to be allowed joint or sole decision making authority or unsupervised time with the children. 3. The abusive parent has to rebut the presumption to be allowed supervised time. Reading the Act correctly means keeping these three moments separate.

Domestic Violence Must Be Proved By A Preponderance of the Evidence

The first question in any case is whether domestic violence happened at all. Under the Act, a claim of domestic violence is established by a preponderance of the evidence. Preponderance means more likely than not. It is the everyday standard in civil cases, and it is the lowest of the three standards the Act uses.

The Act adds something important here. Corroboration from exhibits or from another witness is not required. In plain terms, a survivor’s own testimony can be enough to establish domestic violence if the court finds it more likely than not to be true. A survivor does not need a police report, a photograph, or an eyewitness to meet this standard. This is a great deal because so much domestic violence, especially coercive control, happens privately with no documentary evidence in a paper trail. See the statute:

A.R.S. § 25-403.03(C)

A domestic violence claim shall be established by a preponderance of the evidence. Corroboration from exhibits or witness testimony of another person is not required. Subject to the evidentiary standard in effect for that proceeding, the court shall consider all of the following:

1. Factual determinations related to domestic violence from a court of competent jurisdiction.
2. Evidence that is collected and reports that are prepared by a law enforcement agency, the department of child safety and any other government agency.
3. The alleged victim’s medical or behavioral health records, if the victim waives the associated privilege and any separate right to confidentiality under state or federal law.
4. Records from a shelter for victims of domestic violence as defined in section 36-3001, if the victim provides informed written consent.
5. Educational and school records.
6. Other acts of domestic violence against any person that tend to prove the existence of coercive control, even if those other acts have been decided, predate the last decree or could have been litigated at another time or place.
7. Witness testimony.

The Abusive Parent Must Overcome the Presumption Against Joint Legal Decision Making and Unsupervised Parenting Time by Clear and Convincing Evidence

Once a court finds that a parent committed domestic violence, the Act attaches a mandatory rebuttable presumption. The presumption says that giving that parent legal decision making or parenting time is contrary to the child’s best interests.

Clear and convincing is a demanding standard. It is more than just likely or not but it is not quite the criminal level of beyond a reasonable doubt. The law deliberately makes the most significant forms of access; legal decision making and unsupervised parenting time the hardest to obtain as the abusive parent.

A.R.S. § 25-403.03(G)

The court may not grant any of the following to a parent who is restricted by the mandatory presumption imposed by subsection D of this section:

1. Sole legal decision-making or joint legal decision-making, unless the parent overcomes the presumption by clear and convincing evidence.
2. Unsupervised parenting time, unless the parent overcomes the presumption by clear and convincing evidence.

The Abusive Parent Must Overcome the Presumption by a Preponderance of Evidence To Be Allowed Supervised Parenting Time.

To be awarded supervised time, the parent who committed domestic violence must overcome the presumption by a preponderance of the evidence. Supervised parenting time is still not automatic. The parent has to earn it by meeting this burden.

A.R.S. § 25-403.03(G)(3)

1. Supervised parenting time, unless the parent overcomes the presumption by a preponderance of the evidence.

Why this matters for your case

The standard of evidence is not a technicality. It decides how much you have to prove and how much the other side has to prove. Under the Alec and Lydia Act, a survivor establishes domestic violence by the ordinary civil standard, without needing corroboration. The parent who committed the violence then faces the steepest climb the law provides, clear and convincing evidence, to be allowed joint legal decision making or unsupervised parenting time. That is a meaningful shift in favor of safety.

Tali Best Collins handles every new client consultation personally. If domestic violence is part of your family law case you do not need to have it figured out before you call. You need your story. That is where we start.