BETWEEN THE INTIMACY OF THE HOME AND JUDICIAL DECISION: EVIDENTIARY STANDARDS IN FAMILY LAW IN LIGHT OF COMPARATIVE LAW

Abstract

This article investigates the application of standards of proof in Brazilian Family Law in light of comparative law, addressing the evidentiary difficulties inherent to disputes occurring within the privacy of domestic life. The study assumes that the classical rule of burden of proof is insufficient to resolve judicial uncertainty in complex cases, resulting in a deficit of rationality and auditability in decisions. Through deductive-analytical methodology and analysis of foreign jurisprudence (Canada, UK, and USA), the concepts of burden of proof and standard of proof are distinguished, demonstrating how foreign legal systems use graded criteria—such as preponderance of the evidence and clear and convincing evidence—to calibrate the risk of judicial error. The research addresses the epistemological crisis of “cross-allegations” involving domestic violence and parental alienation, criticizing the undue importation of the criminal standard (“beyond a reasonable doubt”) into family court, which leaves victims unprotected. It concludes on the necessity of explicit standards in Brazil, proposing the adoption of the preponderance of probability for protective measures and the in dubio pro infans principle as a tie-breaking rule, ensuring judicial relief that protects the vulnerable without violating due process.