When the Scale Tips: How Preponderance of Evidence Dismantles Parental Due Process

By Dr. Christina Christopher Laster

In the name of protection, we have legalized the quiet dismantling of the Black family. The courts call it "preponderance of the evidence." Bureaucrats call it child safety. But what is it really? It is state power hiding behind legal euphemisms to erase a parent from their child's life—without the constitutional safeguards we afford even the most hardened criminals.

The Lowest Legal Bar for the Highest Human Cost

In Santosky v. Kramer (455 U.S. 745, 1982), the U.S. Supreme Court recognized that "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents." The Court ruled that the use of a "preponderance of the evidence" standard in termination of parental rights cases was unconstitutional, requiring instead "clear and convincing evidence" due to the severity and finality of the loss.

Despite this landmark decision, many state-level proceedings still rely on procedures or interpretations that subtly erode that constitutional clarity. Judges, many of whom are appointed and politically insulated, often act as extensions of the same government agencies seeking to sever the parental bond. And when a judge only needs to believe the state's case is slightly more likely than not, due process becomes a casualty.

Judges as De Facto Prosecutors

The risk is not theoretical. The family court is often a closed arena where state social workers, court-appointed attorneys, and judges function within a shared institutional culture. They see each other every day. Parents, especially poor and marginalized ones, walk in already presumed guilty.

With no jury and no public accountability, judges often rubber-stamp agency petitions. Why? Because the law allows them to. When the burden of proof is low, the pathway to termination becomes a bureaucratic routine, not a constitutional exception.

As the Court warned in Addington v. Texas (441 U.S. 418, 1979), a low standard like preponderance “indicates both society’s minimal concern with the outcome, and a conclusion that the litigants should share the risk of error in roughly equal fashion.” But how can a parent share that risk with the state when they come to court unrepresented, uninformed, and often unheard?

Lassiter and the Tragedy of No Counsel

The tragedy deepens in Lassiter v. Department of Social Services (452 U.S. 18, 1981), where the Court held—by a narrow margin—that indigent parents were not guaranteed appointed counsel in termination proceedings. Imagine standing alone in a courtroom, facing professional government attorneys and clinical "experts," while your child hangs in the balance. For Black, disabled, or impoverished parents, that is not a hypothetical. It is routine.

The Court in Lassiter acknowledged that parental rights are "far more precious than any property right." Yet it left the question of legal representation to be decided case by case, creating a patchwork of injustice in courts nationwide.

“The supreme right of the state to the guardianship of children controls the natural rights of the parent when the welfare of society or of the children themselves conflicts with parental rights.”

Constitutional Protections, Disregarded

The Fourteenth Amendment protects against the deprivation of liberty without due process of law. Yet the combination of low evidentiary standards and lack of guaranteed legal representation effectively nullifies this right for thousands of families each year. These are families without social capital, financial stability, or political protection.

Let us be clear: when a judge decides a parent’s fate based on a mere "more likely than not" threshold, while the parent lacks counsel and resources, we are not talking about justice. We are talking about institutional betrayal.

A Call for Action

This is not a procedural debate. It is a fundamental rights emergency.

We must:

Codify "clear and convincing evidence" as the non-negotiable national standard for all termination proceedings.

Guarantee legal counsel and advocates of choice for every parent facing state-initiated termination.

Require that judges undergo independent constitutional training that centers family preservation, not political and / or agency alignment.

Expose family court decisions to public reporting and appellate transparency.

Until then, we are merely replicating America's original sins—modernizing partus sequitur ventrem with due process lip service, and replacing parens patriae with polished courtroom scripts that tell parents: your rights don't matter.

We must shift the burden back where it belongs—onto the state that seeks to destroy a family. Anything less is tyranny dressed as justice.

Dr. Christina Christopher Laster is the Political Chair of NAACRO and a national advocate for parental and civil rights. She leads legislative and legal strategies that restore Black family authority and community justice.