When is the burden of proof ever on the defendant? Background: I told my wife that I was taking the kids and moving from Louisiana back to my home of Montana, She said "Ok, but don't take the computer you can have the laptop." So I left, now even though I have my boys the divorce paper work says that I have to prove that she is the unfit parent and all she has to do is show up. So if I can't prove that shes unfit she gets my boys. Now when some one else sues me they have to prove it but not in this situation?