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?
1 Answer from Attorneys
If there is a judgment in a court in Louisiana and you moved the kids out of the state without giving her notice under 9:355.3 and 9:355.4, she can use that in a proceeding against you to attempt to change the custody judgment.
Has she filed a Rule to show cause? And asserted that she should be the domiciliary parent? She has made an assertion and it must be predicated on a set of facts to support the change. In fact, the court will look for a "material change" in circumstances before they change the custody judgment, but always and only if it is found to be in the best interest of the children.
The burden is on her to show a set of facts, once she has, the burden shifts to you to show that the facts do not exist as she stated them or that there are other facts relevant to the inquiry. Remember, the inquiry is what is in the best interest of the children.
I would suggest you get an attorney immediately - there are many pitfalls in these proceedings and an attorney can walk you through the process. Good luck to you.