We welcome Dr. John A. Zervopoulos, board-certified forensic psychologist and attorney to the Texas Family Law Insiders podcast. Dr. Zervopoulos assists attorneys as a consulting expert in several ways; he helps them understand mental health issues in their cases, critique the work of mental health experts, develop deposition and trial examination questions and draft briefs. He earned his J.D. from the Southern Methodist University Dedman School of Law and his Ph.D. in Counseling-Clinical Psychology from the University of North Texas. Dr. Zervopoulos has conducted psychological evaluations, counseling, and mediation in more than 400 court-appointed forensic cases and has qualified as an expert witness in more than 100 cases. He’s also a published author.

Dr. Zervopoulos has developed a model for how family lawyers should interact with mental health experts and mental health issues. He talks about that model, as well as:

  • Methods attorneys can use to determine if there really is a mental health issue that needs to be investigated
  • Distinguishing between traits and disorders
  • The importance of behaviors over diagnoses
  • And more

Mentioned in this episode:

  • Dr. John A. Zervopoulos’s website where you can subscribe for a twice a month newsletter that offers tips for lawyers on how to deal with mental health issues and experts: http://www.psychologylawpartners.com

Transcript

John Zervopoulos: My view is that instead of focusing on diagnosis, it’s important to focus on behavior.

Voiceover: You’re listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: We are excited today to welcome Dr. John Zervopoulos to the Texas Family Law Insiders Podcast. Dr. Zervopoulos is a Board Certified forensic psychologist and an attorney who assists family lawyers as a consulting expert in several ways. He helps attorneys understand mental health issues and their cases, critique the work of mental health experts, develop deposition and trial examination questions and draft or edit language for motions or briefs that integrate statutes and case law with psychologies literature. Doctor Zervopoulos has a JD from Southern Methodist University Dedman School of Law and a PhD in counseling clinical psychology from the University of North Texas. 

He is training from the advanced mediation workshop in the program of instruction for lawyers at Harvard Law School. He’s also a clinical Associate Professor in the Department of Psychiatry at the University of Texas Southwestern Medical Center in Dallas. Dr. Zervopoulos has published two books and his latest book, How to Examine Mental Health Experts, a Family Lawyers Handbook of Issues and Strategies was published by the American Bar Association. He has conducted psychological evaluations, counseling and mediation in more than 400 court appointed forensic cases, and has qualified as an expert witness in more than 100 cases. Thank you so much for joining us today.

John: Well, thank you for having me. This is great.

Holly: So can you just tell us a little bit about how you got started working in family law?

John: Well, um, I got my PhD in psychology. And my first job out of graduate school was with the Dallas Child Guidance clinic. And at that time, they had a contract with child protective services to do court appointed evaluations in juvenile court in abuse and neglect cases. And so I started doing those got to know some lawyers and the judges as well. Shortly after that, I went into my own practice, and began to get appointed to do evaluations in family courts, as well as continuing in juvenile court. And that really kind of got my feet wet in the whole legal system as a psychologist, and then a few years down the road, I decided I was going to go to law school. So you know, the masochism scale on my testing spiked, and I decided to make my illness work for me, right.

Holly: That’s a lot of school. I’m impressed.

John: It is. But SMU at the time, had a program where I could cram three years into four. So I took like 10 hours a semester, and continued my practice doing evaluations, and eventually graduated from law school, passed the bar, continued doing evaluations. And then a wonderful break happened for me that really kind of steered my interest in my my professional interests in the direction where I’m at right now. And that is in the late 90s. The Family Law Section, State Bar Family Law Section, what had some questions about how the Daubert and Robinson cases would apply in family law. And so they tasked Richard Orsinger to develop a committee to explore those issues. And I was fortunate enough to be selected to be on this committee as first time I’d really gotten to know lawyers from other parts of the state and so forth. But what ended up happening is that after a couple of years of meeting, the committee developed what was called the expert witness handbooks. 

Many of our listeners may remember that, and I ended up writing four chapters in that and it got me into integrating the case law, the expert case law, with psychology and what I was doing an evaluator and basically I interpreted for lawyers, what an evaluation was using Daubert. And, and Robinson in Joiner, Kuhmo Tire and so forth. And did a chapter on evaluations, a chapter on a couple of tests, and I was hooked from there. And so, after that, I continue to do evaluations, but started doing more like presentations at the advanced course. And then in about 2007, I was asked by the American Bar Association, Family Law Section pub board if I was interested in doing a book, and I thought, well, okay, I can do that. 

And so little did I know once I got into it what a book was, but it was a great experience. And just like doing the writing for the expert witness committee, it helped me kind of formulate, and integrate my thinking about how lawyers should deal with mental health experts. And I developed a kind of a model for doing that. And then, about that time, maybe around 2010, I decided to switch my practice or transition my practice from doing evaluations and testifying and so forth. And just focus solely on working with family lawyers on how to deal with mental health experts. And their evaluations, their testimony, their work, and how it helped them orient their case around these mental health issues. And that kind of takes me to today.

Holly: So do attorneys normally hire you once there are already mental health experts involved in a case? Or do you help them determine if they are needed, or both?

John: Probably more the first, but really both, you know, oftentimes, lawyers, family lawyers are, you know, dealing with their case, a case has, you know, an associate judge or or the district judge has ordered a psychological evaluation. And they’re kind of waiting, all the months that it takes to do these things. And then they get the evaluation. And if the evaluation recommendations come out against their client, then they call me, okay. But there are other lawyers who are in other cases where they know from the get go, but there are going to be some issues there. Maybe their client or or the other client has had some mental health issues, maybe the kid has had some concerns that require special attention. 

Maybe one of the parents has been in therapy for some more serious sort of mental health issues. Or the lawyer might want some recommendations and talk through whether or not they need an evaluation. Sometimes an evaluation may not be needed. For example, if your case says such soft, strong facts, why introduce an evaluation, let the other side try to do that, if you can go through that. So we kind of talk through that. So there are various stages where I might be asked to come into a case. And that’s just some of them.

Holly: So as a family lawyer, if I had $1, for every client, who told me that the other party was a narcissist, or the other party was bipolar, I would be a very rich woman. And I’m confident that not 100% of those are legitimate mental health diagnoses by my clients. So what can attorneys be looking for as indicators that there really is a mental health issue that we need to investigate?

John: Well, let me start from your initial thought, all right, you will, you would be a very wood rich woman, Holly, and you might even want to buy stock and the attorneys practices. You know, it’s my view that unfortunately, this whole notion of personality disorders, has really become kind of a cottage industry among family lawyers, where it’s almost becomes a parlor game that if the other side has certain characteristics, then they must be a narcissist or borderline, so forth, then they go off to the races with that. But to me, that is really a mischaracterization of what DSM five is all about. DSM is diagnostic, this Diagnostic and Statistical Manual of Mental Disorders that the American Psychiatric Association publishes, that lists all of these disorders. 

And the personality disorder section was one of the most hotly debated sections in in the whole manual to the point that the committee for the manual just basically said, we’re not going to move forward. We’re just going to adopt what we had before and wait till the next manual before we do any changes. Another thing to keep in mind is every family lawyer who is faced with a diagnostic diagnosis, okay, like a personality disorder, we should look to page 25 of the DSM five And that full page there is titled a cautionary statement for forensic use of DSM five. And in that statement, the DSM five folks talk about the risk of using diagnoses in forensic cases. And the reason is because DSM five was not developed for the legal setting, it was developed for clinicians to communicate with each other, to for research, and so forth. And clinicians and the the legal system is kind of hijacked that, particularly in family lot with these, these diagnosis and so forth, to try to make their cases to the judge and so forth, much more evident in in inflammatory, that sort of thing. 

My view is that instead of focusing on diagnosis, it’s important to focus on behaviors. There’s nothing in in the statutes that talk about a diagnosis being the basis for deciding the best interest of the child. And even in my experience, when there’s arguments fights over a diagnosis. Yes, he’s a narcissist. No, he’s not. The judge is really concerned about the behaviors. What is the parent doing with the child? Okay. And what’s that relationship like? One other thing, too, is that the personality disorder chapter distinguishes between traits and disorder. All right. So you’re a litigator, Holly, you’re also you may have an appellate practice as well. And, you know, I’ve worked with lawyers and in helping to draft some language for mental health issues and appellate briefs. 

And I know that appellate lawyers are very detail oriented, you have to be you have to know where all the periods go, you have to line up everything. They’re almost OCD, right. But in other parts of your life, even though detail is something that may be a strength in your life, in different areas of your life, you can kind of let that go and let loose, and so on and so forth. Having a trait of being detail oriented, is different than having a disorder, where the person really can’t turn it off in any setting. Okay. And so you look at a case where, let’s say, a person who is very detail oriented, is going through a divorce, and under the stress of a divorce, they kind of rest on what their strength is, and they really become detail oriented. 

Well, is that a disorder? Or is that a trait where any of us can have different traits of being detail oriented, emotional, and so on, and so forth. And I think that these folks who have this cottage industry, just look at characteristics, pick and choose, and then put put forward in into their case that the other person has this particular disorder. And it’s really unfortunate. You know, my suggestion is always when working with lawyers is let’s focus on the behaviors. That’s what the court is interested in. That’s what the judge will be interested in as well.

Holly: Okay, so I know that when you work with attorneys, you have a certain model that you like to recommend they use and help them implement. Can you kind of describe for us what that is?

John: Yeah, it’s what I call the plan model. And it’s to help lawyers and myself when I’m working with lawyers kind of organize the the, the work that in testimony that mental health professionals are offering the court, oftentimes, when we, when lawyers get evaluations, you know, these things can be like, no battles, right, 90 pages. And after they see the recommendations that aren’t very favorable to them, then they go kind of cherry pick through the 90 pages, try to find ways of critiquing the recommendations. And so I set forth a structured way for lawyers to critique and analyze what the experts have are testifying to their qualifications and so forth. So there are four steps. Each step should be seen in sequence, starting from one going to four. 

And each step also is a step that looks at not only the psychological issues, but it also has the legal component as well. So theoretically, any of those steps by themselves if there’s problems could be the basis for the admissibility issue, where you have case law supporting the staff, as well as the psychological literature in general accepted standards. Alright. So the first step is step one, and that’s where we look to determine the expert’s qualifications, right? And of course, everyone looks to the CV first. And you need to get a current CV, why I look at the CV as kind of like the experts brochure, they’re going to put there in the CV, what they want someone else to see, so that they can impress the other person in terms of their education, their accomplishments and the like. 

So going through each line and questioning, you know, as you go through it, you know, what, what are they claiming? Are their expertise, if they’re asking if they’re saying they’re board certified? You know, which board? Is it kind of a, you know, you pay and you get the degree sort of board? Or is it something that you have to go through, like, for example, the family law specialization accreditation. Also, you’ll see in the CV, what organizations the expert is, belongs to. And that’s important because organizations like AFCC, the Association of Family Conciliation Courts. It’s a multidisciplinary organization of judges, psychologists, psychiatrists, LPCs, and so forth. 

They have a guidelines for conducting child custody evaluations. The American Psychological Association has guidelines for conducting psych, child custody evaluations, and other guidelines as well, including forensic guidelines. And you can use those guidelines later on in terms of questioning the expert. And if they’re a part of those organizations, then of course they can those, those guidelines can be very useful to you,

Holly: When the expert has been court appointed, is it better to try and attack these qualifications before they even begin? Or can you wait till they do an evaluation you don’t like and then get them disqualified or at least discredited based on lack of qualifications?

John: You know, it depends. All these questions, right? Or it depends. It depends on the kind of questions that that are being addressed. Okay, for example, in Section 107 in the family code, it lists out qualifications for someone to be appointed as a child custody evaluator, and what the person has to go through and the like, All right. So you, you know, folks might think that, well, if you satisfy those elements, then you should be qualified. Right. But let’s say that a particular case has particular issues, a substance abuse issue, or other issues, serious mental, mental illness issues, okay. 

And maybe the expert might be qualified to do a child custody evaluation, but not necessarily qualified to address the particular issues that are a part of the case that would impact their evaluation. In fact, one case that I point to often on these issues is the Rodas versus Heist case that was issued by the Texas Supreme Court, I think, in the late 90s. And basically, the issue was the expert, it’s should be able to have sufficient expertise to address the subject on which they are testifying. So when you’re dealing with particular issues in a case that are more complicated, then you would want the qualifications of the expert to be able to reflect the ability to address those issues in a child custody evaluation. So that’s one way of addressing that.

Holly: Okay, so what about once we’ve addressed the expert’s qualifications? What’s the next step in your plan model?

John: The next step is to determine how the expert basically conducted the evaluations, what I call methods reliability. And of course, Daubert and Robinson are very central in terms of the methods have to be reliable. If the experts testimony is going to be admissible. This can be difficult for family lawyers because not being trained in psychology and so forth. And going through this 90 page novella. There’s how do you know where the expert is drawing their statements from, their conclusions and so forth? So I developed kind of a metaphor to help lawyers do that, and it’s what I call the three legged footstool. Alright. And the three legged footstool is made up of interviews, first leg. 

Testing and questionnaires the second leg. And collateral sources the third leg, okay, so this serves two purposes. Number one, as you go through probably pages two and three of The report, it lists most evaluators list what they do in the report. Well, you can start by taking each one of the elements that they list and put them in one of those categories. And if once you get to the end, you suddenly have a skeleton of the methods that the expert used, right? You can also use that three legged footstool as a way of organizing your argument to the court if you’re critiquing the evaluator, or if you’re if you are, you know, supporting the evaluator. And that is, if one of the legs seem weak. Let’s say that they haven’t done a good job in terms of dealing with the collateral sources. 

All right, then the footstool can get a bit wobbly, right. And if two legs, let’s say that they did just minimal interviews, two interviews, and then relied on questionnaires for the rest of the information, those are much different kinds of sources of information. That’s why put questionnaires in the second leg instead of the first leg, then, and then you go into the records. And you find that the interviews have been basically sort of rote, you know, they just kind of tried to get the person’s history but haven’t really inquired into what’s going on in the family. Well, if that leg is weak, suddenly you have a three legged footstool with two weak legs, and then the footstool can topple over. All right. 

And so it provides a way of organizing the methods, and also provides a nice metaphor for the lawyer to think about how the evaluator conducted the evaluation and the arguments to bring forward to the course. And each of those legs, by the way, are generally accepted methods for psychologists to conduct evaluations.

Holly: Is that the case for both child custody evaluations and psychological evaluations in general?

John: Well, I have a problem with the premise of your question. All right. And here, here’s here’s the issue. In my view, distinguishing the psychological evaluation from custody evaluation, is a way of acknowledging of accommodating people who are not psychologists who do evaluate evaluations. All right. Probably what people are thinking of is like in the Texas Rules of Civil Procedure 204. There’s the provision for a mental examination, that would be conducted by psychologists, psychiatrists, and there’s a special section for family courts. All right. In my view, a psychological evaluation is what a psychologist does, when they’re asked to address a referral question by the court. 

And so some referral questions will require more in depth evaluation, that would include testing that psychologists do and non psychologist would not do. And it really again depends on the kinds of question that’s being addressed as to whether you the sidecar how the psychologist does evaluation. So I guess I would almost kind of throw it back to you then with that is, how do you distinguish between psychological evaluation and custody evaluation?

Holly: Well, normally, when I’m thinking custody evaluation, I’m thinking of all those elements that you mentioned before, where they’re interviewing both parties, they’re meeting with the child and each party’s homes, they’re talking to collateral witnesses, they’re getting school records, things of that nature. When I think of a court ordering, a psychological evaluation, oftentimes involves only that one person and no outside information beyond what that individual provides.

John: And sort of my response to that to that would be that, I would want more information from the court before I did that when I was doing evaluations all those years ago. If I got an order like that from the court, I would immediately get back with the court and the attorneys and say, why are we doing this? Okay, the purpose that we’re in court right now is to address the best interests of the child and the parenting capacities of the children. Okay. Let’s say that the that one of the parents comes back with a psychological evaluation that is that shows some problems. So out of the context of being a parent, what does that mean? And if I haven’t seen the other parent and the child And having evaluated that, then you’re forcing the evaluator to make a ton more inferences about this person’s parenting without having evaluated the rest of the family. 

And that’s problematic, because let’s say that person gets up on the stand and and testifies as to the evaluation. While the court has to make a decision about the best interest. Why would what does that mean to the best interest of the child? And the evaluators response would have to be I can’t really answer that because I didn’t interview the child. I didn’t interview the other parent. And I really can’t address that question. So again, it comes back to what is the referral question? What are the issues? If the courts looking at parenting? How best can you do an evaluation that addresses how the parent how each parent deals with the child’s needs? And which in what’s the best fit in terms of a parenting schedule that meets the child’s needs?

Holly: What if the court orders a psychological evaluation of a child involved in the case? Should the attorneys what kind of parameters should the attorneys ask the court to include, if any? And should the attorneys be asking the court to include in that order that both parents should be interviewed as part of this process?

John: Certainly, both parents should be interviewed as part of the process. I mean, there are parents who they’re the adults with whom the child spends the most time, you know, there haven’t been very many times, then in all the evaluations that I used to do, where it was asked for a child to be evaluated, you know, what are some some issues? Well, one might be in terms of lacking in whether a child has specific learning disabilities, or has specific conduct or attention deficit disorders, or has particular emotional problems that really get in the way of their functioning and so forth. 

And so doing an evaluation of the child might also incorporate using the school because probably a school counselor will have had interactions with the child, there may have been testing done with the child’s school and so forth. So doing an evaluation, a child coming up with a for lack of a better word, a diagnosis, or a statement about where the child is at, and recommendations about the child would be child centered, and then it would seem from there, the court would have to decide, okay, what about the parents in what kind of schedule between the parents can best meet the needs of this child who’s just been evaluated? 

Holly: Okay, so let’s move on to talk about step three of your plan.

John: Okay. Step three, is what I call the, you know, where you look at the the reliability of the inferences, the conclusions that the expert comes to. I distinguish between conclusions, and opinions and recommendations. conclusions are basically what’s going on with the parents or the child from a social science perspective. Okay, mom is depressed. Dad has this personality disorder, we’re going to say, okay, how are we getting to that conclusion? Okay. And we have to do that before we get to step four, which would be applying the conclusion to the legal question. All right. So when looking at the conclusion, it’s important, I think, to deal with the notion of inferences. That is, lawyers should not view experts, opinions and recommendation, conclusions as certainties. These are all inferences. In fact, in life, every decision we make is based on inferences from information that we have, right. 

And if that’s the case, then that really kind of opens up for the lawyer. What kinds of inquiries they can make of the expert. For example, in the Joiner case, it states that the Joiner is the US Supreme Court case, the third case in Daubert Trilogy, think it was a 1997 case. It states that experts commonly pull from data to to come to their conclusions, all right, but we shouldn’t say just because the expert says this is the case that we shouldn’t accept that as fact right? Rather, the there may be too much of an analytical gap between the data the that the expert considered, and the opinion. And the question is, what about that gap? Right? 

So what about the data? Did the data that that mom is depressed come from testing, and the interviews and collateral sources, and so on and so forth, how that might affect her parenting, all of those information can go to the conclusion that the that mom is depressed. And I think if lawyers basically look at the data, see what the what the expert has done with the data and come to the conclusions, that that really opens up some gateways for examination. Another issue that relates to that is what I call the bias buster. All right, we’re all concerned about biases, right? Our experts having confirmatory bias, hindsight bias, all these sorts of things we’re always looking for bias? 

Well, the best way to look for bias is to ask the lawyer asked to ask the expert, what alternative explanations of your data in the case facts did you consider? Then the explanation or the inference that you settled on for your conclusion? That’s part of what the law looks at as well. In the Daubert case, it talks about how alternative explanations should be considered when coming to opinions. In the federal rule of evidence 702 Advisory Committee knows it raises considering alternative explanations as a Daubert, sort of related factor. So here’s where I was talking about before where you’re kind of combining the legal part with the psychological part, psychologists are tasked to look at alternative explanations, you can put that together to develop questions that can be very helpful, not only for one’s own mindset, but also in terms of examination.

Holly: So is that the alternative explanations that they rejected? That usually shows you where their bias lies? Or if there is a bias? Or is it their failure to include any alternative options at all?

John: It depends. All right. So of course, if you’re cross examining the expert, and alternative explanation, maybe your case story, right? And did the experts adequately account for what your case story is? Your case story is shown in the data is shown in the collateral information. And oftentimes, your case story may be connecting the dots differently than opposing counsel, differently than the expert who’s developed his or her own case, the story of the case and their report, right. And so one of the ways of exploring that is to go through some of the facts. Did you consider this? 

When did you consider this in your evaluation? How did you consider it an evaluation? Why did you feel like that was not an adequate explanation? What went through your mind? How did you do that? Did you do that during the evaluation, at what point? Or did you wait until the end while you were preparing for this deposition, and you knew that you were going to be asked about different explanations of your opinion. And here’s that’s how you can it’s why that is such a helpful tip is it forces the evaluator to start explaining how they got where they were? 

Holly: Okay, that gets us to the last step in your plan model, what is step four?

John: Step four is gauging the connection between the conclusion and the legal standard, you know, what’s in the best interest of the child. And of course, that flows into the recommendations that the expert makes, which are based on both the conclusion and the opinions, right? That’s where sort of the rubber meets the road, right in the recommendations. That’s what the lawyer is really freaking out over or really feeling good about, right? And you want to see, okay, let’s say mom is depressed, for example. Well, you know, and the evaluators making a huge deal about why mom, how mom is depressed and how that might affect her responsiveness to the child and so forth is literature to that effect in serious depressions. 

But, you know, doctor so and so. You understand that there are many people who are depressed that correct it’s probably the most common emotional state or emotional disorder, I hesitate to call it disorder, but for lack of a better word that people experienced. Right, right. And there are many people who are depressed who are taking medication. Yes, correct. Are you saying that all of these people are not adequate parents for their children? Okay. And that’s where you start kind of taking apart how they are applying the conclusion to the opinion. And you can use the analytical gap tests in the same way. Is there too much of a gap between the conclusion mom is depressed, and the opinion and recommendations that the expert is is promoting? 

And of course, it’s up to the expert to know that legal standard, and sometimes for the lawyer, particularly in a deposition to see how the expert interprets that standard, you know, what is the best interest of the child mean to you, Dr. so and so. And, of course, it’s not cut and dry, even in case law, right. There’s several factors that we glean from case law to consider. In other states there are specifically denominated in statutes. But in such a question like that, for experts, you know, you might get some interesting answers that point to either bias these or lack of information that they have, or other issues that may guide the lawyer in terms of considering how to address that to the court, either in their closing or in their trial examination.

Holly: So do you find that attorneys can successfully attack these evaluations with consulting assistance? And have the expert thoroughly discredited without hiring their own expert to testify?

John: That’s difficult. That’s a difficult question. That’s a hard question to answer. Sometimes, that can happen, right? If the evaluation is poor enough, and can really be taken down, you can almost use that in your favor, right. But oftentimes, you have someone who’s been appointed regularly to the courts, and the judge is looking in these difficult cases for guidance as well. And they’re going to be looking to what the evaluator says. Now, in some cases, we know once the evaluator gets off the stand, you know, they’re out of everyone’s mind. And the key witnesses then are the two parents directly across to the parents and judges are going to make the decision on that. But when the judge finishes that case, and says, okay, I’d like to make sure I have the evaluators report in in my file, then you’re sweating a little bit, right, because the judge is kind of looking for some way of coming to helping himself or herself to a decision. 

Sometimes it’s good to have a retained expert, to testify about the quality of the evaluation, and particularly in the step two parts, where you’re talking about the three legged footstool, right? And taking apart those methods and how that may have affected step three, the conclusions and the opinions. In other cases, which is more problematic, I think, is when the opposing counsel retains an expert. And how might the lawyer handle that? All right. There are you know, there are good retained experts, obviously competent ones, but there, there are hired guns as well, right in there, you know, I kind of put them in category, there are three kinds of hired guns, there’s hired gun who will say anything for money, or they’ve been retained by this expert. So many times that you kind of know that the the expert is going to say anything pull out literature and stuff when support their opinion. That’s one expert. 

The second of the three expert, hard gun experts is the fervent advocate expert, okay, and they are locked in to the particular issue, that’s part of the case. And they always testify on that particular angle of the issue. And they will be able to cite research and so forth. But the way they cite the research is skewed, and a bit cherry picked, but they’re more professional than the first hired gun. The third one to look out for is the retained expert who is a therapist of one of the parents, and is coming to vouch for the parent. And that’s a role problem that’s pointed out for example, in 107 is a role problem. It’s also a professional role problem and that kind of expert even though they might have some helpful insights should not be up there talking about the best interests of the child or the parenting abilities of the parent if they haven’t also seen the child with a parent.

Holly: Okay, so we’re getting close to running out of time. But if you offer one piece of advice to less experienced family lawyers, what would it be? 

John: Oh, that’s a good question. I think the best thing, the best piece of advice when dealing with mental health professionals, always keep in your mind, a central question. And this is a question I start my books, both of my books with. How do you know what you say, you know. Too, oftentimes, lawyers get stuck into, for example, we start out talking about narcissistic personality or this or that, and there are bookshelves at Barnes and Noble that are filled with books that describe all these things. And so we have sort of a lay language about what all this stuff is about, all right. And when an expert gets up there, and they may be talking and psychological jargon, and so on, and so forth. 

And then they come up with these diagnoses, or these views of the parents and the child, is sometimes you kind of get lost in what the expert is saying, and you know, how do I address that. But the way to cut through that is to always have in the back of your mind and the centerpiece of all your questioning, how do you know what you say, you know. So let’s say you ask the expert a question. And they answer, but it’s still unclear about exactly what they’re saying. Well, how do you know that? And then just kind of take them down the ladder, until you get to the point to the expert can’t explain further or you’re satisfied that you’ve gotten down to the ground level? So if there’s one piece of advice, I think, in dealing with mental health experts, and probably with any expert for that matter is, how do you know what you say you know, keep asking that question. And keep that as a central mindset, as you kind of go through the examination.

Holly: Yeah, I think that’s, that’s great advice. So if our listeners want to find out more information about you, where can they go?

John: Well, they can go to my website at www.psychologylawpartners, that’s a plural partners.com. And I have all the information in terms of how I work with lawyers, that kinds of things, I do the work, you know, I would emphasize that I don’t sign on as co counsel, but rather as an expert to help lawyers upgrade their case preparation and presentation when it comes to mental health experts. And, and there’s lots of information on my website with regard to that. Also, on my website, you can sign up for a twice a month newsletter that I publish, that addresses, you know, tips for lawyers and how to deal with mental health experts and issues that come up in dealing with mental health issues and experts. And it’s free. 

And I have a list of I’ve been doing this for about 10 years, I have a list of the last year and a half of these psychology law briefs on my website, take a look at those. And I’d love to have you probably almost 600 folks that are mostly in Texas, but throughout the country that subscribe to to these psychology libraries, or give me a call, I’d love to talk with you. Particularly if you have a solo practice or small, firm practice. You know, most of my practice is Rif solo and small firm lawyers. And I enjoy working with as partners with lawyers in dealing with these aspects aspects of of their cases.

Holly: Well, great, I highly recommend everybody sign up for that newsletter. It’s very informative. I’ve signed up myself. And I just want to thank you so much for joining us today. It was a lot of great information and look forward to working with you in the future.

John: Thank you so much, Holly. Appreciate it.

Voiceover: That Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com

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This week, on the Texas Family Law Insiders Podcast, we are speaking with Mary Evelyn McNamara. She is a partner at Rivers McNamara, PLLC in Austin. From the beginning of her career, Mary Evelyn knew she wanted to represent people. In order to hone her craft in family law, she became Board Certified. She is a member of the Family Law Council for the State Bar of Texas Family Law Section.

Today we sit down with Mary Evelyn to discuss recovering attorney’s fees, as well as:

  • Preparing to prove your case for attorney’s fees
  • Presenting your bills without violating attorney-client privilege
  • Best practices for identifying fees in interlocking cases
  • Keys to recovering interim and appellate attorney’s fees
  • And more

Mentioned in this episode:

Website: https://riversmcnamara.com

Transcript

Mary Evelyn McNamara: Preparing to testify on attorneys fees is not something you do the night before you’re going to testify in trial. Get started early.

Voiceover: You’re listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: We’re excited to welcome Mary Evelyn McNamara as our guest today on the Texas Family Law Insiders Podcast. Mary Evelyn is a partner at the family law firm of Rivers McNamara in Austin. Her practice involves primarily complex family law matters at the trial and appellate levels. Mary Evelyn is board certified in family law and a fellow in the American Academy of Matrimonial Lawyers. She’s also on the Family Law Council for the State Bar of Texas and is the Chair of the Council’s appellate committee. Thank you so much for joining us today.

Mary Evelyn: Thank you for having me, Holly.

Holly: So let’s start with a little bit of background information. Can you tell our listeners how you got started in family law?

Mary Evelyn: Well, it was a matter of being at the right place at the right time, and also some networking ahead. After I had clerked for the Third Court of Appeals in Austin, I was to join a firm in Austin called Brown McCarroll. It’s merged into another firm since then, but I knew I wanted to be a litigator, and I had met the head of family law section, Richel Rivers, and had told her I wanted to be a litigator. It was unusual, by the way, still is for big law firms to have a family law section. But the week I started, there was a family lawyer who was leaving the section to become an associate judge. Richel asked if I would help out in the family law group. And I was hooked the first day. The work was fascinating. And I knew I wanted to represent people. I knew I wanted to represent people as compared with companies. And so it turned out to be a great fit.

Holly: So you’re obviously not still at that firm. Now, as you’re your own. You have your own firm somebody else. So can you describe how you got to be where you are today?

Mary Evelyn: Sure. I didn’t know that at the time. But it turned out that working with Richel Rivers was about a six year job interview. And after that six year job interview, I was thrilled when she asked me to be her partner, and the new firm that we formed Rivers McNamara. We struck out on our own on March 1, 2011, and just celebrated our 10 year anniversary. So we must be doing something right.

Holly: Congratulations on that.

Mary Evelyn: Thank you. Along with that. I’ve worked to hone my craft and family law, I wanted to continue to deepen my knowledge. And one thing I did along the way was become board certified in family law, which I would recommend to anyone who is interested in deepening their knowledge and honing their craft and family law.

Holly: So in your bio, I mentioned that you’re on the Family Law Council of the State Bar of Texas. For anyone who doesn’t know what that is. Can you explain what the Council is and what you all do?

Mary Evelyn: Sure. The Council is the governing body of family law section of the State Bar. It has the executive committee. And then also, members on the council who served in five year terms. Who do committee work such as the appellate committee, you talked about legislative committee, which is a very hard working group and publications committee. Y’all, I’m sure everyone has seen the Texas family law practice manual. That’s a product of the publication’s committee and so the council does the work on behalf of the Family Law Section of the State Bar. Also the head of the council each year, meets with other heads of bar sections and so advocates on behalf of the Family Law Section as as the head of that group.

Holly: So today, we’re here to talk about an issue that is very commonly dealt with in family law cases, which is recovering attorneys fees. So there’s one particular Supreme Court decision Rohrmoos Venture v. UTSW DVA Healthcare, LLP. Can you tell us why that particular case is so important?

Mary Evelyn: Sure. This case came out in 2019 in the site is 578 S.W.3d 469. Rohrmoos court compared to models for recovery of attorneys fees for attorneys fees, Arthur Andersen method and the lodestar method and clarified that when a court is going to be determining an attorney’s fee award, it starts with the lodestar method. And I’ll talk about the lodestar method in a minute. But I want to give a brief background about what happened in that case. Because how this person testified about fees I’ve heard many times in trials, and it’s not going to suffice anymore. He talked about his years of experience, his hourly rate of what the reasonable amount would have been, but that his fees were more than double because of searching through millions of emails, reviewing hundreds of 1000s of documents. 

The Texas Supreme Court reversed it, determining that the fee was general and conclusory devoid of any real substance to support a fee award. The lawyer didn’t explain how much time was spent on a task or categories of tasks. It’s unclear whether he even included in his testimony, all the tasks performed. He didn’t attempt to introduce billing records into evidence or testify about the details of his work. Here, I’ll get to the lodestar method, which is you determine the fees to be awarded by multiplying reasonable number of hours spent working on the case by a reasonable hourly rate. And because the court could not determine the reasonable number of hours spent, times a reasonable hourly rate. The fee award was reversed. He just testified about a general amount and said, gosh, it took a lot to get to this amount. 

Holly: Okay, so in terms of proving a case now, for attorneys fees, what evidence do we need to have in order to have any hope of recovering our attorney’s fees?

Mary Evelyn: Well, of course, you want your fee agreement. And although Rohrmoos included that billing bills are not required. They are strongly urged. And of course, one issue that comes up when you’re talking about introducing your bills into evidence is whoa, wait a minute. I don’t want my entire bill, billing information to be introduced because it’s going to have attorney client privilege information and work product privilege information. And some redaction is okay, by the way. And this takes me to a case that I read about recently that involved a dispute between two inventors of systems for filling and sealing recreational water balloons. Now that’s a case it’s going to catch your attention. I know it’s not a family law case. 

But um, you know, who knew that we were going to have disputes about water balloon filling systems. Anyway, this case out of Dallas last October KBIDC vs. Zuru Toys, upheld the redaction of bills and acknowledged that a three invoices are routinely redacted to protect attorney client and work product privilege. Even with the redactions there, the billing entries listed the attorney who performed the task, the date the attorney’s billing rate, length of time to complete the task and a description of the task, except excluding any privileged material. That was redacted. And that was okay. It was sufficient to apply the lodestar method, even with those redactions.

Holly: Well, that’s really good to know because I’ve been hearing that now we can’t redact our bills. And but it was really going to be a problem of how do you balance including enough information in the bill so the client knows what you’re being billed for? And so that a court can tell if it was a reasonable amount of time for that particular task, while still not waiving privilege or putting too much information that you don’t necessarily want the other side to see.

Mary Evelyn: Well, that’s a balancing act. Because our now we have many levels of communications to our clients, including the bills. They want to know what are we doing working on their case? So you balance including what you’re working on. Keeping in mind what you can redact if you say prepare for trial and your bill. Well, what were you doing? Preparing for trial can include any number of things. So you might deepen that description and say interviewing witnesses, preparing a motion that’s going to be required in trial, working on identifying exhibits. You can keep in your description there. 

And at least in, in my judgment, I don’t believe you need to redact that kind of information. But if you have, you have talked with clients, that’s a task takes time. But you’re going to want to redact public client regarding possibility of hiring an expert witness, talk with CO counsel about and then some specific research tasks that might be done. Consult with a potential expert witness, that’s going to be work product privilege. And you don’t want to include your consulting with Miss Jones about possibly being a parental alienation expert, for example. So in all of those, you can still you can still convey to the client what you’re doing, but have room for redaction of the privileged information.

Holly: So in terms of fee agreements, I generally don’t see attorneys admitting fee agreements into evidence when they’re approving up attorneys fees. Is that absolutely necessary? Or is it enough for the attorney to testify that I’m being paid X dollars an hour, and here’s my bills?

Mary Evelyn: That’s interesting because I generally do see fee agreements being admitted into evidence when proving up attorneys fees. Of course, no one’s going to dispute that the client has retained the attorney for the representation. So I don’t think of the agreement as absolutely necessary. But I would I would consider that belt and suspenders to have the evidence in the record that the client and the attorney have entered into a contract of representation.

Holly: One of the things that I was doing a little bit of research about this issue that I came across was that attorneys need to explain why all entries were reasonable and necessary. Obviously, in a final trial of a big case, there are going to be a lot of billing entries. To what extent can you condense that down? How detailed do you need to be to meet that burden?

Mary Evelyn: Well, as you’re preparing your testimony, you’re going to have some high level areas as you do your case review. As you said, if you’re getting into a going to trial on a highly contested case, there are going to be lots of billing entries. But condensing it down to Did you have multiple temporary orders hearings? How many depositions were in the case where there are multiple depositions requiring a significant amount of preparation for each one? Did the opposing party file multiple motions that required multiple responses? Are there novel legal issues that required more research than usual? 

Was the case fairly straightforward? Or did it have for example of a novel issue in regarding custody? Did it have a novel issue regarding some sort of characterization? And was there something particularly complex such as did it require a lot of document management and contact with a forensic accountant or a complex tracing, then you can, you can zoom out and think more high level as you’re looking back on the case what you’re going to be doing as you prepare your testimony.

Holly: A lot of times in family law, we have interlocking cases with one client, but there may be multiple different types of things happening at once. For example, if we have a client in a custody modification, and then someone files an enforcement during that suit. To what extent do we need to separate out those bills? Or do we need to identify whether a particular billing entry goes to enforcement or modification or both? Or can we want them all together?

Mary Evelyn: I don’t recommend lumping them all together. I think the best practice is when you are seeking fees under different statutory schemes to segregate your your billing entries between for example, seeking fees in a sapcr under Chapter 106 of the family code versus seeking fees under Chapter 157 for an enforcement. Otherwise if the if the time, unless it is so intertwined, which is can be an issue but unless the issues are so intertwined, if the entries are not segregated for the purposes of seeking fees that can be reversed on appeal, because the Court of Appeals is not able to determine what part of this be these fees were for the sapcr what part was for the enforcement. And in fact, I was encountering that issue recently, in a case that ended up settling, but I was looking at it didn’t, in fact, include a sapcr and enforcement. And I was going through and in preparation for my testimony, segregating those fees.

Holly: So you’re segregating them kind of on the back end, you’re not billing them to two different matters along the way.

Mary Evelyn: Actually, in that case, it was segregation on the front end on a single matter in which the billing entries were were separate, or enforcement versus the sapcr.

Holly: That makes sense. So you just mentioned preparing for attorney’s fees portion of a trial. What do you do to prepare prior to your testimony?

Mary Evelyn: Well, first and foremost, most Rohrmoos. Rohrmoos suggested that the agree there be an agreement between the attorneys before trial, as to the amount of fees to avoid protectants protracted fee disputes. So I suggest talking with opposing counsel, to see if you can get a stipulation about the reasonable and necessary fees. Not that anyone is agreeing that the other side should get fees, but that the fees that each side has are reasonable and necessary, stipulate as much as possible ahead of time to avoid those disputes. We’ve talked about good billing practices, I think, going along the way with good billing practices on segregating different statutory schemes for getting fees, writing your bills, having your building entries, requiring as minimal redactions as possible. 

Having ready for trial, two sets of bills, one redacted, and one unredacted for the judge to review in camera. Knowing the rates in your locality. Knowing that your fee, your billing rate is reasonable and necessary. Outlining your testimony as in an affidavit and even preparing an affidavit. Rolling down to satisfy the Arthur Andersen factors. And getting it going sooner than later. Preparing to testify on attorneys fees is not something you do the night before you’re going to testify in trial. Get started early. And also I talked about the concept of a case review, I find it really helpful. Going through my billing entries, as I’m preparing for my testimony to also get a review of what has happened in the case. 

I think that’s very helpful just in general in preparing for trial. And remember the basics, you must testify, you must present evidence that your fees are reasonable and necessary. There was a recent case out of a family law case out of the Dallas Court of Appeals, in which the about $77,000 fee award was reversed, in part because the lawyer did not testify that the fees were reasonable and necessary. And also the billing records were insufficient in that case in that or some of the people on the bills. They were not identified by name, and they were not identified by hourly rate. And so it was impossible to determine who was doing what task and by the way, that case is in the interest of ml. Out of the Houston fort, excuse me, the Houston 14th in January.

Holly: With getting reverse because the attorney didn’t testify about it being reasonable and necessary is just using those buzzwords sufficient or does an attorney need to go beyond that. And if so, what what do they do?

Mary Evelyn: Well, you go back, you go back to the Arthur Andersen factors. I don’t have Arthur Andersen factors, by the way, to just rattle off top of my head. But time and labor require the novelty and difficulty of the questions involved the skill required to perform the services, the likelihood that the acceptance of particular employment will preclude other employment. Be customarily charged in the locality as I was talking about. Know your rates in your in your area. There is a lawyer in Austin, who routinely does surveys of the Austin area, family lawyer rates and circulates those I find that incredibly helpful. 

The amount involved and the results of obtained. Time limitations, nature, nature and length of professional relationship. Experience of the lawyer. That basically, you, you have much more than I think my fees are reasonable and necessary. If you just testified to that, then it’s not going to be sufficient. You want to testify about what was the reasonable amount of time required to perform these services. And what is reasonable? And so no, just I think it’s reasonable and necessary is obviously conclusory. Without anything to back it up. 

Holly: So sometimes, you may need to hire an outside expert for addressing attorney’s fees issues. When do you think that is necessary? And what can an outside expert offer different from the attorney testifying as an expert, which is the norm?

Mary Evelyn: Well, first of all, can your client bear this cost? Can your client afford to have someone else testify? I if I were hiring an outside expert, I would want a family lawyer in my locality, who has been practicing for a while who was familiar with rates familiar with the time it takes on a case in the end. It can be beneficial to have an experienced family lawyer to testify as compared with the trial lawyer directly representing the client. And it can also free up the attorney who’s preparing for trial to prepare for trial. What I just went through as far as some elements of preparing attorneys, fees testimony takes time, it takes a lot of time. And so bringing up the trial attorney to concentrate on witnesses and evidence other than the attorney’s fees can be very helpful again, if the client can afford it.

Holly: And I think the fact that it takes a lot of time to do it right is another balancing act here on what are the odds of actually recovering attorneys fees in this case? Is it worth investing that much time to try and prove them up if your judge isn’t likely to ever award them?

Mary Evelyn: Well, very true. Very true. But you know, the old saw if you don’t ask you don’t know. So it’s definitely a balancing act. I’m not, I’m not going to put $5,000 in preparation fees to seek to recover $5,000 in attorneys fees that have been incurred. I mean, I think that’s kind of a silly example. But still, you have to do a cost benefit analysis of course. And something I am routinely saying to prospective clients and clients is the norm is each person’s going to be ordered to pay his or her own his or her own attorney’s fees. So of course, it’s a balancing act.

Holly: What about interim attorneys fees? And you know, in a divorce case, if somebody is seeking interim attorneys fees, and potentially in another type of case as well, does that change what you have do to prepare? Because obviously, we’re talking about future fees, and how much the fees are going to be required to get us from hearing to final trial.

Mary Evelyn: Yes, yes. And of course, the interim attorney’s fees are crucial in cases in which, for example, one person has the purse strings and the other person does not and say it’s a sapcr compared to a divorce case. And one person may not be able to have sufficient representation without interim attorneys fees. Know your judge, of course. what are the facts of the case, And what’s your client’s situation. But in a sapcr or, for example, if you are my interpretation is if you’re seeking prospective, forward looking future attorneys fees, you still need to have a case budget that you’re testifying about as far as here’s what I anticipate will be needed in this case. If if there’s another temporary orders hearing. If we’re going to be deposing the parties. 

If we foresee there’s going to be an expert witness deposed. Are there novel legal issues that are going to need to be researched? Which I know you know about Holly, as far as the CJC case of the, if you have a case with the novel legal issues, it’s going to require a lot more time, then a fairly straightforward sapcr. And so my best practice would be develop your case budget. Who’s the time keeper? What’s the person’s rate? What is how many hours is it going to take for various tasks for getting interim attorneys fees instead of well, your Honor, based on my experience, the fees in this case are going to be $25,000. I don’t expect that’s going to be sufficient to get interim attorney’s fees.

Holly: One of the issues we deal with a lot, particularly in Collin County and Denton County is our temporary orders hearings are so short. We’re limited to 20 minutes a side, or 30 minutes a side. And when you have such a short amount of time, it’s really hard to devote very much of that to the issue of attorney’s fee.

Mary Evelyn: I’d prepare a summary. I’d just have a summary of the case budget. Your Honor, my testimony would be that the fees are reasonable and necessary, taking into account and, you know, a minute, then introduce your summary into evidence. I’m sure that with those time limitations, y’all are working with summaries all the time.

Holly: Yeah, that’s a great idea. I like that. So kind of along the same lines of interim attorneys fees. Another issue we deal with is appellate attorneys fees. And I don’t think Rohrmoos really addresses appellate attorney fees. But how do you go about recovering those and planning for asking for those?

Mary Evelyn: Well, let’s go back to our water balloon case. Zuru Toys is obviously my new favorite case, since it’s water balloon filling devices. In that case, even though the trial fees incurred were upheld, the appellate attorney fees were reversed. And the reason is the testimony was only a lump sum amount of fees. For example, your honor to handle the appeal at the Court of Appeals I’d be $35,000. That that was reversed because it didn’t have a reasonable hourly rate with reasonable number of hours for that task. 

So I would break that down into, for example, it would be X amount of dollars to review the record at x hourly rate on X number of hours. And then just break it down to prepare the brief, to prepare the reply brief if we’re going to have a reply brief. To prepare and present oral argument if there’s going to be oral argument, but including, again, the the number of hours, times the hourly rate, because again as with the example of interim attorneys fees a lump sum without a breakdown of the task, rate and time, it’s not going to be sufficient. There’s also a case following Rohrmoos called Yowell. y o w e l l that goes into moving appellate attorneys fees after Rohrmoos.

Holly: So if you Is there any way of recovering attorneys fees from the appellate court, or is your only option to have asked for them in the trial court prior to final judgment?

Mary Evelyn: Well, you can certainly request attorneys fees at the appellate court level but best practice is to prove up your prospective appellate attorneys fees in the trial court and and then have what you hope, of course for is a prospective fee for prevailing on appeal that is already in the trial court’s judgment.

Holly: All right. One more topic here. What are some tips you have for cross examining an attorney on the issue of attorney’s fees.

Mary Evelyn: Get those fees down and out. As is get them reduce or get them excluded entirely. The first thing I’ll say is if the other side has put on very general testimony that’s conclusory that was reversed. And along the lines that was reversed in Rohrmoos, be quiet. Don’t drill down and say, gosh, you didn’t give enough testimony, let’s drill down and help you out to see if we can really flesh this out for you. No, just move on. Look over your opposing party’s bills. Have in mind areas that you want to enquire about. 

Was there overbilling. Were there few people, for example, doing the same work. Are the hours out of proportion to the tax. For example, if the case started out, with a straightforward petition for divorce, that that shouldn’t take that much time. And the time entry is 10 hours to prepare the petition for divorce, you want to drill down on that and poke holes and the reasonable amount of time it would take for various tasks. And then, again, cross examine on the Arthur Andersen factors as to just go through and demonstrate unreasonableness.

Holly: How has Rohrmoos impact attorneys who offer flat fee arrangements for family law matters.

Mary Evelyn: Well, lawyers who, again a best practice tip his lawyers who have flat fees should still keep billing records to satisfy the lodestar method. The reasonable hourly rate times the reasonable amount of time to complete the task. Have in in your billing records, even if you’re not providing to them to the client keep good records of who was the timekeeper? What was the rate? What was the task performed? What was the time to complete the task, and then the day performed. That way for a party seeking attorneys fees under the flat fee arrangement, those records would still be available for preparation of these and also introducing those records into evidence

Holly: Certainly seems to defeat the purpose of doing flat fee arrangements.

Mary Evelyn: Again, you would hope in most flat fee arrangements that you wouldn’t be headed to trial of seeking, seeking those fees. That it would be a an uncontested matter that was amicable from beginning to end.

Holly: So one last question, I’d like to ask everyone on our podcast. If you could give one piece of advice to young lawyers, what would it be?

Mary Evelyn: It’s hard to narrow it down to one piece of advice I’d like to give about five or six. But the first piece of advice I would say is get a mentor or more than one mentor. People who are successful in their practices as attorneys did not get that way by themselves. They have mentors along the way, whether they’ve been practicing six months, or they’ve been practicing 40 years, they still have mentors along the way. The second thing I would say is to take care of yourself physically and mentally. This profession can take a lot out of us, especially in the area of family law with the types of disputes that people bring to us. Engage in healthy ways to maintain your health. Because there are a lot of there are a lot of demands. And unfortunately for attorneys, both mental health issues and substance abuse issues are higher than they are in the general population. And so remaining healthy is crucial. 

Holly: Agreed. Excellent advice. Well, thank you so much for joining us today. I think I know I learned a lot about some changes I need to make in my attorney’s fees, testimony and hopefully all our listeners will pick up some good nuggets of information to you. And so thanks for being with us.

Mary Evelyn: Thanks so much, Holly.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle Family Law appellate matters. For more information, visit our website at www.draperfirm.com

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Today we welcome Julia Hatcher to the show. Julia has been practicing family law in Galveston, Texas, for over 22 years. She’s a Founder and the President of the Texas Association of Family Defense Attorneys, TAFDA, founded in 2020, which is a group of statewide attorneys whose mission is to preserve and advocate for family integrity which is guaranteed by the Texas and United States Constitutions.

We chat with Julia about: 

  • TAFDA’s mission
  • Parental rights and the Constitution
  • How TAFDA is equipping attorneys for success in parental termination and child protection cases
  • How TAFDA is affecting changes in the law to benefit families
  • And more

Mentioned in this episode:

Transcript

Julia Hatcher: You’re dealing with parental rights and that, you know, we call that the death penalty of civil law. If a parent’s rights get terminated, it’s, it’s like getting the death penalty in a criminal case. Yes, you will, you will go to trial, but make sure you know what you’re doing before you do that.

Voiceover: You’re listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: We’re excited to welcome Julia Hatcher to the Texas Family Law Insiders Podcast today. Julia has been practicing family law in Galveston, Texas for over 22 years. She’s the president of the Texas Association of Family Defense Attorneys, which is a statewide group of attorneys focused on the defense of the family. Founded in February of 2020, TAFDA’s mission is to preserve and advocate for the right to family integrity, which is guaranteed by the Texas and United States constitutions. They fulfill that mission by educating and training attorneys who represent parents and children in parental termination and child protection cases, by equipping those attorneys with the information, skills and tools necessary to be successful in the courtroom, and by participating in the legislative process to affect changes in the law that are beneficial to families. Thank you so much for joining us today, Julia.

Julia: You’re welcome. Glad to be here.

Holly: Can you give us a little bit of your background in family law and how you got to be where you are today?

Julia: Sure, I started practicing law in 1998 in Galveston, Texas as a sole practitioner. At the time, I was focused mainly on criminal law and CPS defense because those were the cases that you could get appointed to. But since that time, I’ve also been involved in divorce cases, child custody proceedings, child support proceedings, juvenile defense. So I really have a wide range of experience. Currently, my focus is on CPS cases and CPS reform.

Holly: So that leads us to the organization of which you were one of the founding members, the Texas Association of Family Defense Attorneys. Can you tell us how that organization came to be and what it’s all about?

Julia: Sure. So there were actually a couple of things that prompted the founding of TAFDA. Back in the 85th session at the Texas Legislature, which was four years ago now, I was working with my state representative to craft a defense for parents whose rights were subject to parental termination, because they failed to complete court order services. I had noticed that many parents’ rights were being terminated on that ground, because it was the easiest ground for the department to prove. The appellate courts were upholding those terminations, and the parents were not able to defend themselves because there was nothing in the statute. So I set out to fix that. 

And while I was working that bill in the legislature, it had been suggested to me that, you know, there really needed to be an organization of attorneys to fight for the rights of parents, and at the legislature would be much more open or amenable, or I don’t really know what you want to call it, but they’d listen a lot more if there was just me more than just me. at around the same time, I had been appointed to be a member of the legal representation committee of the Texas Supreme Court Children’s Commission. And they had commissioned a study of legal representation of parents and children in CPS cases. And when that report was finally published, at the end of 2018, unfortunately, did not shine a good light on representation of parents and children. 

So taking those two different issues into account, I started thinking about how we could start a statewide organization for family defense lawyers. That was similar TCDLA, which is the statewide Association for criminal defense lawyers. And so I thought about it for about a year. And then realized, well, we got another legislative session coming up in a year, I better do something. So I contacted some other attorneys who I knew were staunch advocates of families, families rights, parents rights. I invited them to my home. And after we had lunch, we talked about my vision and what we wanted to accomplish and what we thought needed to be different. And that’s how TAFDA was born. And that was on February 22 2020 at two o’clock. So if you’re in the numbers, that’s a lot of twos.

Holly: So now you’ve been together a little over a year, and one of the is the specific mission of TAFDA.

Julia: So our mission is to preserve an advocate for the right to family integrity and what family integrity is, it’s a constitutional rights and are recognized by the Supreme Court and the Fifth Circuit and the state of Texas basically means keeping the family unit together. So parents have constitutional rights to raise your children, rights to make decisions regarding the care, custody, and control or their children. If if, you know in some of these cases, parents cannot be reunited with their children, we then we strive to make sure they are at least kept within the family, you know, extended family, so that, you know, in the future, you know, they’ll always have access to their parents. We do this by offering training to lawyers, we haven’t really been able to have training because of the pandemic. But we you know, we have offered monthly CLEs and, and right now we’re advocating to the legislature for changes in the law.

Holly: So this has obviously been a strange year with the pandemic. But what has TAFDA been able to accomplish in its first year of existence?

Julia: So we currently have about 86 members, and who represent over 100 counties in Texas. So I think that’s pretty good growth during a pandemic, especially since we haven’t been able to be out and about and having live trainings and whatnot. And we haven’t really been able to get out the word that’s just been word of mouth. We have been able to offer free monthly FCLEs’s by Zoom, we’re able to make that happen. And we were able to register with the state bar so that we are able to give CLE credit. We were offering the monthly last year, but now with the legislative session, we’re focused really more on that, but hopefully it will start up again, once sessions over.

Holly: So speaking of the legislative session, are there any, what kind of bills are you working on now? And what’s your involvement with legislature through this session?

Julia: So we were able to get nine bills sponsored by Representative Dutton and co authored by Representative Middleton, really excited about that. We have a legislative committee that we basically went through the family code, and we asked, okay, we asked ourselves, okay, what what do we want to change in the family code that’s going to benefit families, you know, what’s happening in the courtrooms that we think needs to be changed. So we drafted some proposed bills, we submitted them to several members of the legislature, and we’re very lucky on representative Dutton pick them up, and Representative Middleton agreed to co sponsor them or co author them. Three of the bills were heard last Tuesday, just a couple of days ago in the Human Services Committee. One of them HB2550 is to limit the amount of services the department can require of a parent without getting a court order as to why more services are needed. 

2551 is regarding placement of children, and outlines a placement preference, which says that, you know, when the department wants to place a child, they need to be placed in the following order. One is with family by blood, marriage or adoption. Second would be what they call fictive kin, somebody who’s had a long standing relationship with the child. The third choice would be foster care, and the last would be a residential treatment center. And we thought that was necessary because right now that apartment equates relatives with fictive kin. Since we strive to keep the family together, we wanted to change that we think that’s necessary.

Holly: And so then under that bill, if that passes, the department would have to show the court we tried to get family, this is what we tried, there wasn’t anything available. This was the second stage with relatives or fictive kin, this is what we tried to do before they can get to foster placement or, you know, worst case scenario, a residential facility.

Julia: Correct. And then HB 2552 was a bill regarding investigations. So when the department currently when they first go out on an investigation after they receive a referral, they’re not required to interview the parents or the children. The only mention in statute right now is that they should interview the child. But if their equipment malfunctions, or they don’t have the equipment or whatever, then they’re excused from doing that. And of course, they never do that. So we wanted to add in that the parents and children must be recorded. 

And that is basically because we find at hearings, you know, CPS worker will say, well, mom or dad said this, Mom and Dad are saying I didn’t say that, and we have no way to prove it. And of course you have CPS against the parent, who’s the court gonna believe. So we wanted to have that recorded and then the other part of that bill, states that CPS cannot drug tests children or parents during an investigation and they cannot threaten the removal of the children in order to coerce the parents to submit to drug tests because that’s a violation of Fourth Amendment. We have four other bills that are pending in the juvenile justice and family issues committee that have not been set for hearing yet. But hopefully we’ll get there in a couple weeks.

Holly: Are there other bills out there that you keep an eye on that maybe you weren’t presenting, but that you’re going to be involved with testifying, advocating for, those types of things?

Julia: Sure. We testified on five more bills that were in Human Services Tuesday, and will be testifying on eight more bills in the juvenile justice committee next Monday. We previously testified on a big bill as HB 567, which is an omnibus bill that was authored by Representative Frank, who’s the chair of Human Services Committee. Changes a lot of things in CPS, and almost too much to get into on this podcast. But if you go look at 567, you’ll see that if that bill passes, and assigned by the governor is gonna change the landscape of CPS, so we’re very, very excited about that.

Holly: That would change it for the better in your opinion.

Julia: Yes, absolutely.

Holly: When will you find out if your bills are going to make it to the next step or when they’re if they’re going to get actually passed?

Julia: Well, you know, after the testimony is heard during a committee hearing, they’ll leave a bill pending. And then it’s typically it’s the next week, they’ll vote on whether or not the vote the bills out, but doesn’t always have to be the next week. So you just kind of have to watch on tlo. If you could get bill in you sign up for bill alerts, and get noticed, you know, when the bill moves. Once it’s voted out of committee, if it is, then it has to go to the floor has to do calendars to get placed on the floor. And then if it’s voted out of the House, then it gets sent over to the Senate. And then you start the process over again in the Senate. So it could take a while and eventually hopefully end up on the Governor’s desk and you hope he doesn’t veto it. It is a process and it takes a while but because our legislative session is so short, it moves very quickly.

Holly: Are there advocacy groups that are coming out against the bills that you’re in favor of?

Julia: I have not seen any advocacy groups coming out against the bills, the HB 567 was actually a joint effort, unlike several stakeholders that they’ve been working on this bill over the last two years since the last session. And so because they were all working on it together, there was nobody to come out against it. As far as TAFDA’s bills, we have not gotten any pushback from them. And then the other thing with the pandemic is that a lot of people are not showing up to testify. So this session is very different than last session. Last session, you’d have hearings going till midnight. Now they’re pretty much ending by five or six.

Holly: So are people I know they have given the opportunity to testify virtually. I actually have been asked to testify about a bill next Monday and would have to do it virtually. Are you finding that people are not taking advantage of the ability to testify virtually?

Julia: You know, I testified virtually on 682 last week and 682 was the AROF bill. I don’t know if you know what Arif is, but it’s the Administrative Review of Finding after CPS completes your investigation, that they make a finding of reason to believe they’ll send a letter to the parents stating that they have 45 days to appeal the finding. But sometimes those letters never arrive, they get lost. You know, parents don’t know about it, or they don’t read the letter or whatever. So HB 682, states that the department has to verbally notify the parents of the AROF review their right to a review. And they have to document in the file that they’ve notified the parents. So I did testify on that virtually. I froze up, they froze up. It was very frustrating. But eventually I think all my testimony got out. So I I’ll never do that again. I will never I won’t do that. Again. I will go up there if I need to testify, because it was just too difficult.

Holly: That’s good to know. So aside from the legislative angle, I know because this is how I got to know you in the first place that TAFDA can file amicus briefs in cases. I got to know Julia, because TAFDA files an amicus brief in our case of in re CJC when it was pending in the Texas Supreme Court. And I think it was really impactful because a brief had been filed on the other side and they were able to come in and kind of respond to that particular breed and the issues that it raised. So can you discuss the amicus process and how TAFDA decides to become involved in a case?

Julia: Sure, um, actually your your case was the first time you wrote an amicus brief, I had been contacted by, I think it was the Texas Public Policy Foundation was working with you. And they contacted us and asked us if we would submit an amicus and, and we thought it was a good issue because although you didn’t have an actual CPS case, it involved, you know, constitutional rights, that parent presumption, which is absolutely applicable in CPS cases, so that’s why we got involved. Since that time, we have been asked to write other amicus briefs. But we haven’t written any just because lack of time, lack of people. We have just formed an amicus committee, though. So we actually now do have an amicus committee. So maybe we can get more things done. But as you know, as a volunteer organization, you can only do as much as your volunteers are able to do so.

Holly: And I think there’s probably a lot of overlap between, you know, cases like CJC. I know there have been a couple of three that I’m aware of Court of Appeals cases post CJC, dealing with the fit parent presumption, and at least one of them, which is now currently pending in the Supreme Court was a CPS case. Two of them may have been. So are there other cases currently pending in the Texas Supreme Court that have CPS issues or parental issues that are going to tie in with CPS cases?

Julia: Sure. There’s one case was just argued, I believe was the end of February might have been the end of January as time flies so quickly, I have a hard time remembering but was was not that long ago. And that was in the interest of JFG. Was a case revolving around CPS, parental termination and incarceration where a parent had been incarcerated. In the past, I don’t even think he was incarcerated at the time of trial, but it was just in the past. And in CPS was using that prior incarceration against him as a reason to terminate his parental rights. So that’s obviously a very important issue. It’s gonna affect a lot of people because most I don’t want to put a percentage right on but I would say a lot of CPS parents have been in jail before. 

So you know, the issue is going to be, you know, what, how long do they need to be in jail? What were they in jail for? Did being in jail affect that child? What if the child hadn’t been born yet? You know, there’s a lot of questions that go into that. And there’s a another case, I don’t really want to call it a companion case, but it has similar issues. It was just filed recently. And that’s in re JRAM appealed from the 10th Court of Appeals, which not only addresses the incarceration, incarceration issue, but also issues of drug use, and the COVID extension orders. So that’s an that’s going to be interesting one, this is only one I’ve seen regarding the COVID extension orders. 

Another big case, that is pending right now is in the interest of LCL. And that is, comes out of the 14th Court of Appeals. That was an en banc opinion by the 14th Court of Appeals, where they CPS is likes to say they up ended decades of of case law, which I’m not so sure that that’s true. It well, it is true. Could be true. But it’s because that case law was mis was misinterpreting prior case law. So it was kind of like the domino effect. One case, misinterprets a case and then it just goes on and on and on and on. Yeah. So the 14th Court of Appeals is basically like, hey, we’re gonna fix this. Because somewhere along the line, we decided that a parent’s drug use just ment endangerment. And that’s not the case. The department has to show that there is a causal link between the parents drug use and harm to the child. Yeah, so that said, that’s a really big case. 

Because it’s going to affect again, most of these cases involve parents using drugs. And you know, to what extent, you know, to what, to what extent does it mean that a parent’s drug use means termination? I guess, for lack of a better word. Another case, actually the most recent case, and is actually one of our directors of TAFDA. Dennis Slate, this was his case in the 14th Court of Appeals, where he had it he was representing a client whose children were removed by the department on an emergency removal. And at the adversary hearing, the department could not prove that they’re that they use reasonable efforts to prevent the removal, which is one of the elements that they have to prove, in order for the court to sustain the removal. 

They couldn’t prove that and but the and they even testified that there were no reasonable efforts to that removal, because there were unexplained injuries to the child. And they wanted the father to confess to the crime, which he wouldn’t. And then that brings in, you know, Fifth Amendment implications, right. So, so it went up to the 14th. And the Court of Appeals reversed because they had not proven reasonable efforts to remove trial court sustain the removal, it went up to the 14, they reversed it. And the department filed petition for review with the Supreme Court and got in an emergency stay issued. So they didn’t have to return the child to the parents. And my understanding is that the department is arguing that they made reasonable efforts to prevent the removal by investigating the referral, which doesn’t make any sense, because they’re mandated by law to investigate all referrals.

Holly: So what would constitute reasonable efforts?

Julia: Well, the 14th Court of Appeal said, you know, there’s plenty of case law that says if the department issues with Family Service Plan, and has has a parent engaged in services, to rehabilitate them, so to speak, or to, you know, counsel them on why the child was removed, that would, that would be considered reasonable efforts. The department could have asked for the father to leave the home because they thought it was they thought the father was guilty. And he’s the one who inflicted the injuries. So they could have asked him to leave and the child has stayed home with the mom, you know, so there’s other things that they could have done, but they just didn’t do anything. Nothing.

Holly: I would think there are a lot of there’s a lot of overlap between what’s happening in the CPS cases that can tie into people that are handling just traditional family law cases. 

Julia: Sure.

Holly: It’s, you know, when you mentioned the drug use a little bit ago, I can see where, yes, that’s going to be an issue in CPS cases where you you need to have kind of a standard of what, what do we do? And how much drug use what does it mean, but I am seeing in regular family law cases as well, where we have drug use as an issue. And you know, what we deal with the issue of the fit parent presumption? Does drug use render you unfit? Does drug use years ago render you unfit? Where’s that line? I think that case you mentioned in the supreme court may give us some guidance about where that line should be both on the CPS side and in the non CPS Family Law context.

Julia: Exactly. And there’s a difference right between a custody fight between two parents who are alleging you know, one parent use drugs, and so they shouldn’t have as much visitation or supervisor or whatever. There’s a difference between that in the state coming in and taking children from parents because of those allegations.

Holly: We also have something kind of a little bit in between where we have non parents, grandparents or other relatives or even other third parties who have standing for one some reason or another, who are blaming a parent or both parents are unfit based on drug use. So for attorneys out there, you mentioned you have 80 something attorneys in TAFDA now, but I’m guessing there are many, many more attorneys out there who are involved in CPS work, how can they get involved? And what does it take to become involved in your organization?

Julia: So we have a website, www.TAFDA.net. And they can visit our website, they can learn all about us. And we have an online application. And we also have a page it’s Texas Association of Family Defense Lawyers page on Facebook. And we try to keep that updated. But again, you know, update as much as we can. But there’s information on that. And they can just contact us and submit questions or just fill out an application.

Holly: What’s the fee to become a member?

Julia: So we have different levels of membership. Based on you know, like we have a regular membership is $150. We have a associate membership, which would be like maybe somebody with a nonprofit organization, and that would be $75. And then we have like a new newly licensed attorney. Like I think it’s less than two years and I think that’s $50. And then if you’re over 70, it’s free because you get the seniority exemption. So there’s different levels, but that’s all outlined on the website.

Holly: So I’m curious if this is an issue TAFDA is dealing with or has considered dealing with. I know I used to do CPS appointments in a few counties. And one of the big reasons that I stopped was because certain judges would slash your time you couldn’t bill for travel time you might sit in court for four or five hours waiting for your hearing to be called, and you can only bill for one. And at the end of the day, the attorneys were getting paid a fraction of the time that they spent on the cases, which makes it hard to retain good attorneys to represent parents and children. Is that something you all have looked into at all?

Julia: Well, yes, I knew that we had there is case law that says that if the judge slashes your fee, then you file an appeal with the administrative, regional presiding judge of the of the region. And so yeah, no, there is case law on that. And I have done that before. And then I got paid everything that I asked for. So, you know, I don’t know that judges are really doing that so much anymore, but I don’t and I don’t know how recent your experience was, I know that some, obviously, it’s up to each county, what they want to pay their attorneys. There is a movement afoot by the children’s commission to somehow streamline and organize the appointment and payment of attorneys so that it’s more consistent across the state. 

But I don’t think that they were able to come up with any solution yet, because it’s such a large state, and they’re, they’re, you know, they’re looking at models and other states and how other states do it, but Texas is so big, that it’s um, it’s not really feasible to do what some other states are doing so, but we realize that, that that’s an issue. And that’s one of the reasons why the report that came out a couple of years ago, came out showing attorneys weren’t doing that good of a job. And and that’s exactly why because they’re not getting paid, which is not really a reason because if you do a job, you should do it, whether you’re getting paid or not, right. Otherwise, don’t do it.

Holly: Right. It is definitely puts puts attorneys in a tight spot, though, when they know, okay, this, the code says that I should be doing X, Y, or Z, or my training tells me I should be doing X, Y or Z to properly represent this child. But I know judge so and so is going to pay me for only doing x. And then I have to, 

Julia: I think in that instance, what I would do is I would do the job and then a judge so and so didn’t pay me then I would appeal it and let judge so and so explain why you didn’t deserve to be paid. 

Holly: And the other issue I would see is, and this is more recent, I know, like Denton County, for example, doesn’t pay until the case is over. And so there are attorneys who can represent, especially children for years, and they’re not actually going to get paid until the case is closed out. Whereas other counties pay out monthly or on a very regular basis. So it definitely seems like some sort of uniformity would be really helpful in that area.

Julia: Yeah, Galveston county pays out whenever you submit a bill, they don’t make us wait till the end of the case. So I you know, I think that would just be a matter of going to the judge, you know, and the, you know, the attorneys probably just need to get together and go to the judge and talk to the judge and say, look, you know, we really need to get paid more than once a year or whatever.

Holly: So if you had any advice to give to or one piece of advice to give to young lawyers who are interested in getting into CPS litigation, representing parents representing children, what would that advice be?

Julia: I would say that, you know, this is a very unique area of the law, it is not a bread and butter case, it is this is not the kind of case to take just because you’re needing to eat, which sometimes we you know, some people call uncontested divorces, bread and butter, because they’re pretty easy, right? That these are not easy cases, you really need to have a heart to work with the parents, and or the children. And you really need to take CLE. This, the Supreme Court, children’s convention has like $25 CLEs on the State Bar website, you can get a lot of information from them. They have a lot of information on their website. TAFDA has a lot of information on our website. And it’s just really important to know and get a mentor if you can, maybe sit in on a few CPS, you know, trials and see what you’re up against before starting out, because they really are a lot of work. If you do them correctly.

Holly: They can also provide very valuable trial experience for a lot of attorneys because CPS I think tends to get to trials and jury trials a lot more frequently than traditional family cases.

Julia: Yes. But you want to remember again, that you’re dealing with parental rights. And that, you know, we call that the death penalty of civil law. If a parent’s rights get terminated. It’s it’s like getting the death penalty in a criminal case. So yes, you will, you will go to trial, but make sure you know what you’re doing before you do that, which is why I suggested sitting on a couple of other ones and getting the experience.

Holly: Yes, that’s definitely a great advice, no matter what area of the law young litigators are interested in being involved in. See how it’s done. Well, I think we’re just about out of time, but I wanted to thank you so much for joining us today and helping our listeners learn a little bit about TAFDA and what it does and how to get involved and look forward to seeing what your organization does in the future.

Julia: I appreciate it, Holly. Thanks for inviting us.

Voiceover: The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com

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Today we welcome Christy Bradshaw Schmidt to the Texas Family Law Insiders Podcast.

Christy has been a Licensed Professional Counselor in Texas since 1997. After six years of working as a Family Court Counselor in Dallas County Family Court Services, she went out on her own conducting private child custody evaluations and serving as an expert consultant for attorneys. Christy also works with attorneys and their clients to develop child-friendly parenting plans.

Today we chat with her about child custody evaluations and:

  • Goals and outcomes in custody evaluations
  • How attorneys can help their clients prepare for custody evaluations
  • Money: balancing what you need with what you can afford
  • Mistakes attorneys make during custody evaluations
  • Challenging a custody evaluation
  • And More

Mentioned in this episode:

Transcript

Christy Bradshaw Schmidt: In the middle of a custody evaluation, give me a parent facilitator, give me an individual therapist, give me a reunification therapist. That’s great data, get those pieces in place early, and allow that to be part of your evaluation. And hopefully, you actually get a really good conclusion that can actually put an endpoint to that litigation and get that family moving forward.

Voiceover: You’re listening to the Texas Family Law insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: We’re excited today to welcome Christy Bradshaw Schmidt on the Texas Family Law Insiders Podcast. Christy has been a licensed professional counselor in Texas since 1997. After spending six years working as a family court counselor for Dallas County Family Court services, she went out on her own conducting private child custody evaluations and serving as an expert consultant for attorneys. She’s completed over 570 custody evaluations and provides expert testimony regarding issues such as relocation, children under three, parental alienation, and reunification. She’s also regularly retained by attorneys to conduct work product reviews, other mental health professionals evaluations, and related therapeutic work in the field of family law. Christy also works with attorneys and their clients in a consulting role to help develop child-friendly parenting plans. So thank you so much for joining us today.

Christy: Thanks for having me.

Holly: So start, let’s start out by, can you just tell us how you got started working in family law?

Christy: Sure. I kind of stumbled into this arena. This was not a field of study that they covered in graduate school. When I went so long ago, I didn’t know it existed. So I got out of graduate school, I went into clinical practice thinking that’s what I would do for the rest of my career. I would then about five years of working in residential treatment facilities and inpatient treatment facilities. Aside from getting tired of working holidays, I got very disenchanted, disenfranchised, disenchanted, excuse me, with managed care and not being allowed the time we needed to work with the patients that we had. 

I worked in residential treatment, initially, we had kids for a year and a half. And then it was like, get it done in 30 days and get them out. And that was extremely frustrating. And I was like, okay, I don’t know that I could do this forever. So I kind of went out and did something random for about six months, while I looked for a job in the newspaper. That’s how long ago that was. And that’s where I found the job at Family Court Services, didn’t know what this field was, didn’t know what this entailed. But that’s kind of where I got my foundation and my training, and about six to six years into that went out on my own. And then in my been in private practice ever since.

Holly: So generally describe what types of services you provide for family lawyers? 

Christy: Of course. I do custody evaluations, I do a very limited number of custody evaluations now, because I am trying to prevent another backlog like I had previously. I also do adoption evaluations, which are some oftentimes the best part of my job, they’re usually the most fun. And then I do expert work. I do everything from pure expert work, where I go in and provide testimony to the court about peer reviewed research on issues like children and a lot of the stuff he said but children under three and relocation and alienation issues and resist refuse dynamics. 

I also do work product reviews of other child custody evaluations or other mental health professionals work products. And then I also do strategic legal support, where I work behind the scenes from a mental health perspective with lawyers and clients to kind of help strategize their case, draft, you know, direct and cross examination questions for mental health providers, and also to work with parents on how to be better parents and better co parents in the midst of their litigation and beyond.

Holly: So for our listeners out there, I first met Christy, I don’t know, maybe five years ago, and the context was

Christy: Oh, it was longer than that.

Holly: It was longer than that? Where, you know, I needed I had a bad custody evaluation and the case and another attorney said, hey, you should contact Christy and see what you can do about this. And so we hired Christy and she helped us both consulting about how to attack the custody evaluation and testifying as an expert as to what was done wrong in this custody evaluation and ultimately, our client won even though the custody evaluation came out against her. So what, in general, what is the purpose of a child custody evaluation?

Christy: The purpose of an evaluation is to for a neutral mental health professional who is appointed by the court to go in and evaluate the parties to the suit and the child or the children involved to compare and contrast their parenting strengths and their parenting weaknesses or areas of improvement to assess the relationship with the child or children involved. And to look at you know, assess those kiddos. Are we dealing with, you know educational issues? Are there some physical health issues? 

Are there some social issues or some psychological issues? And looking at the issues that that child may be having and what their needs are compare and contrasting those parents strengths and weaknesses, and ultimately providing a recommendation to the court regarding what the evaluator believes to be in that child’s best interest, with the goal of obviously helping that child have an ongoing, consistent relationship with both their parents, as long as that is healthy and safe to do so. So it’s a piece of the puzzle for the courts, hopefully one that helps settle cases.

Holly: So I know a lot of attorneys are kind of hands off when it comes to custody evaluation and just kind of push they’re like, here you go client, go deal with this person. What can attorneys do to help their clients prepare for a custody evaluation and help get the best possible result under the circumstances?

Christy: First and foremost, talk to your client, I cannot tell you how many times I show up to a party’s home, or we meet in an office and I say, hey, tell me what you understand about why I’m here. And what we’re doing or what your attorneys told you about why I’m here and what we’re doing. And they look at me blank faced and like, well, either nothing or I’m supposed to talk to you, or they don’t know a lot, some knowo, a lot. You know, I’m a lot of your listeners, I’m sure I’m preaching to the choir, they do this. But a lot of times they don’t have an understanding of what a custody evaluation is. So they don’t know what they’re walking into. And they’re very anxious because this is about the most important thing in their life. It’s about their children. And this is this is intimidating. It’s invasive. It’s, you know, there’s lots of probing and prodding and uncomfortable questions. 

And so just telling them what the purpose of an evaluation is, helping them at least in a general sense, know what to expect, encouraging them to have a conversation with them about okay, so if something seems weird, or doesn’t make sense in your custody evaluation, don’t confront your custody evaluator. Come back to me make a note, let’s talk about it and see, do we need to address it? Do we not need to address it? And how do we address it? You know, do we need to address it now? Do we just need to wait and see how things play out things of that nature. So first of all, just helping them understand things would be the first tool. The next thing is, and I’m gonna back it up a little bit, come up with a good order on the front end, our form book committee has a great form court order related to custody evaluations, and they do a great job keeping that up to speed. Like we need it to be. But it’s it’s a form book order. 

And the goal of a custody evaluation is to answer specific questions that are posed by the court related to this family, this child this situation, formulate some questions for that evaluator that are case specific, it helps kind of narrow down the focus of that evaluation and get the evaluator on track from the very beginning. Don’t over prep your client. Because don’t tell them what to say, because they’re going to screw it up, I promise. And we’re gonna know you talk to him too much. It’s pretty obvious when that happens. And in regards to, especially if you’ve got somebody doing like a psychological test, or their psychological testing that your psychologist, you have a psychologist doing your custody evaluation, tell them do not Google it, do not study it, they’re gonna mess up the validity scales, I promise I’ve seen it happen. 

And teach them just to calm down, that this is strictly to develop alternative hypotheses, it’s going to be compared to the data. It’s not the end all be all of your custody evaluation. And just to go in, read the question, answer the question, don’t overthink the question and answer the question. Um, I can keep going, you have a question.

Holly: What I was gonna say, you know, you talked about don’t over prep your client, I have heard of some attorneys who will hire experts to essentially prep their clients prior to a custody evaluation. Do you think that is ever appropriate? If so, when?

Christy: I do some of that, and I think the answer is how it’s done. Because I’m not going to go in and tell the client what they need to say, I’m not going to go in and fill out a client’s paperwork for them. I’m not going to do the work for them. But I can do the work of sitting down and going, this is what to expect. This is what it looks like. This is same stuff I just said, I need this is how you handle a psych test. This is how you handle an interview. You know, just be open, be honest, be transparent, don’t lie to them follow their lead, they’re in charge, and just giving them those tools to not be anxious. 

But I think if you’ve got somebody coming in who’s doing their paperwork, who’s telling them what to say, who’s telling them how to say it, who’s doing the work for them, you’re ultimately going to end up with a tainted process. And usually clients are not good enough to hide that and it’s overtly obvious. So it’s all on who you hire and how they do it. That’s key because there is a that’s an ethical line and it’s it’s an easy line to cross and it’s you got to kind of keep yourself in check if you’re going to do that work.

Holly: So to what extent should attorneys be giving you information throughout the case versus it just being come it just coming from the parties?

Christy: A lot of that has to do with the amount of money your case has just to be honest with you. At the end of the day. My preference is that attorneys if the finances are there, sit down, go over that paperwork with your client, talk to your client about what they have what they think is important to provide, help them narrow down what’s relevant to like child related issues. They don’t need all your business evaluation information, because that’s not relevant to the children oftentimes, or most of the time. Help them narrow down, you know, they don’t need the 3000 our family wizard messages that you’ve written over the last five years, let’s find the most important ones that prove your concerns about the other party or disprove their concerns about you or give them a flavor for how you co parent. 

Pleadings are helpful. Transcripts. I love a good transcript, especially if it’s on child related issues. That’s very helpful to see how clients interact in court, see if their answers match what they’re telling mine. And then, you know, do we have depositions? Do we have, you know, audio recordings or video recordings, we want them to review? And at that point, check with your evaluator. Do they review those? Is there a special policy to have those reviewed, and just kind of go through with your client, what they have what you know, that they have, and then helping them narrow down what needs to be provided. If it comes from an attorney, the other attorney has to be cc that’s required per family code. 

And clients can give information to evaluators without it necessarily having to cc the other side. But I’m real clear with clients. Don’t have anything your attorney doesn’t already have. Because this is not intended to be you know, this is a transparent process. It’s not, you know, evaluation by ambush by information you don’t know about. So hopefully that information that they’re providing has already been produced and discovery. But helping them do that, or if they if they don’t have the money, make sure they talk to you about what they’re fixing to hand over. So you have a handle on what’s going out.

Holly: So you mentioned you know, if things are in the budget and money, obviously that is a big issue for a lot of clients. And how do you balance with your client? Or, you know, how should an attorney balance? Okay, we need to have a really good custody evaluator that’s qualified but can’t make it our clients afford a really good custody evaluator? And, you know, what is crucial that attorneys and and their clients do? And what are things that you can be more budget conscious and let go?

Christy: The biggest thing is just making sure you are periodically checking in with your client, how’s it going? Is there anything you need for me? You know, is there anything they’re asking for is the evaluator asking for for me. I’m not one who’s going to involve the attorneys a lot, unless it’s a case that requires it. And that’s usually because there’s questions about protected health information and whether or not that’s going to be produced to the other side, do we need a confidentiality order? Do we not need a confidentiality order? One client has 25 recordings, they’d like me to review, y’all got to agree on that, things like that, that I need attorney help on. But most of the time, I don’t have a lot of contact unless it’s warranted. I don’t reach out unless it’s warranted. 

I don’t want to, you know, just increase the cost of an evaluation for no reason, but narrowing down what they provide, how much they use you, making sure you’re at least having conversations, but you don’t have to go page by page through what they’re producing. If you have a handle on the case, and on what information they’re providing, as far as an overarching theme, and then, you know, get to know your evaluators, there’s evaluators in our area, you could, they could charge $50,000. You can get evaluations done for, uh, you know, $3500 to $5000, by people who are qualified per the code. So getting to know those people who are out there, I’m always happy to take calls and go, hey, here’s kind of your gamut. And here’s the people I’m aware of that are available and doing them. But getting to know people who can do it at a lower cost is also important, because just because a family needs one and can’t afford it doesn’t mean they shouldn’t have one.

Holly: What are some mistakes you see attorneys make during a custody evaluation process?

Christy: Probably number one communicate with us specifically, in regards to dates. I can’t tell you how many times I get phone calls that we’ve set mediation for this day, or we’ve set final trial for this day, didn’t think to check if I was like not in town, or at a conference or on vacation, or just I can’t get it done by then. You know, and that and I get deadlines are hard and they’re hard to set for custody evaluators. I understand that but have a conversation. Try and be flexible with the dates if you can, but communicate that information because oftentimes, we’re left out of that loop. Or we’re told about, oh, it’s four o’clock, we need you in court tomorrow at nine. And that’s that just uproots your day and makes for a nightmare trying to get the file and review the file and all that kind of good stuff. So talking not some of it is the stuff I already mentioned. 

But please talk to your client beforehand. Don’t not talk to them. I’m not reviewing the documents with them, or at least talking to them about the documents. This is a big one and probably my my biggest frustration now and I’ve seen this in grow over the course of my career. The level of litigiousness has just it feels like it’s gone through the roof probably in about the last five years. How custody evaluators and not just cost evaluators but mental health professionals how some attorneys not all, but will attack, make threats, threaten to sue, threaten board complaints, encourage clients to board complaint them. And sometimes board complaints are needed. I don’t want to say that every mental health professional’s, you know, completely above board, and has not violated their ethical code at times and need to be, you know, that needs to be addressed. 

But being disrespectful, being overly aggressive, when it’s unnecessary. It’s we’re losing people left and right as custody evaluators as mental health professionals in this field, and it doesn’t hurt to be nice, it doesn’t hurt to be respectful. It’s not hard. And you know, I’m all for a good cross examination. And if I’ve messed up, great, let me have it on the witness stand, because it will only make me better and I won’t do it again. But at the same time, there’s a line that you can cross and it just feels like more and more and more that line is getting crossed and how mental health professionals are being dealt with. And we’re having less and less people who want to do this work or in either stay in the field or even give this field a shot.

Holly: So speaking of cross examination. Often times 50% of the room is going to not like how the custody evaluation comes out. So if an attorney happens to have that client who did not receive a good outcome in the custody evaluation, what are some tips for how an attorney can attack the custody evaluation?

Christy: You can obviously if the money’s there, hire somebody to do a work product review. I mean, that’s, that’s an easy thing. And I would normally recommend to have that if unless you’re butting up against the designation deadline, do that confidentially first, to see what their opinion is, see what their impressions are, and see if it’s even something you want to put on the witness stand potentially, before you designate them. And then have them do that review, talk about it. See if that’s information. I’ve done three since October that went to mediation and settled. Custody evaluator was on one side, I didn’t work product review and said this is what I think and what I’ll testify to. Case settled at mediation, that’s a good thing. And I never had testified or never was officially designated. 

But making sure that it’s been reviewed by you, or by a work product reviewer compared to family code, that’s the first thing to do is pull out section 107, subchapter D, go through that line by line. That’s why we have it, you know, we worked hard to pass that law so that it’s real clear what evaluators have to do and not have to do. And I’ll be honest, most of the evaluations that I’ve seen either been kicked out of court or not relied upon, didn’t follow some aspect of that code or some aspect of that order. So looking at their evaluation, did they answer all the questions they were supposed to? Did they do everything their order said they do everything the family code said, and then just being familiar with, you know, the other guidelines, AFCC guidelines, the AAML guidelines, the APA guidelines, and, you know, looking how to look for because when I do a review, it’s twofold. 

It’s statutory first looking at their order, did they do what they’re supposed to? And then I’m looking at, you know, best practice, do Is there a obvious bias where their efforts to mitigate their bias? Do they talk about the limitations of the data in their report? Is there an analytical gap from what data they have in the opinion they reached, and just learning to look at things from that perspective, from two fold can help number one, establish great direct and cross examination questions, and also assist the attorney in determining do I want to fight this? Is this a case I need to settle? You know, is this evaluation going to help or hurt my client in the long run in a courtroom?

Holly: So for the attorney who’s on the side, where their client came out, looking better in the custody evaluation, when you have an expert hired on the other side that’s going to attack it? Are there things the attorney on the favorable side can do to rehabilitate that expert that was appointed by the court?

Christy: Well, if they’ve been designated early enough depose that expert, if the money exists. Find out what they think or have them produce a report one of the two, so that you know what they’re gonna say. That’s step one. So what are they gonna say? What are they gonna say is wrong with that? And, number one, even see if you agree with them, see, if you believe that their opinion’s accurate. The difficulty is a court appointed expert can’t have a conversation with an attorney without opposing counsel on the phone. So you can’t just call that court appointed evaluator and say, okay, this is what they’re saying about you. 

How do you fix that? But it’s understand and the other thing is you can depose that evaluator see what they’re gonna say, can they explain the poor quote unquote, perceived errors? Or is there an explanation or is there a defense to that, and then being able to like, again, go through that family code if they complied with it and just doing a great, very strategic, very methodical, you know, direct examination of proving they did their job before that other expert ever gets a chance to get on the stand? if you’re if you’re the petitioner and actually get to go first? 

Holly: Yes, exactly. So let’s say that a custody evaluation comes out and the party says, this information in here is wrong. And there’s some issue in the custody evaluation that and the party feels they would have come to a different conclusion if they didn’t have this wrong information contained in there. What can attorneys do, if anything, to try and bring that up and maybe get the custody evaluation amended or supplemented, or anything like that?

Christy: It depends on the definition of what’s wrong. Is it like got a fact wrong that they had that like, it’s their fact? Does that make sense? I’ll never forget, I wrote somebody last smoked pot 16 years ago, and it should have been that when they were 16 years old, it made no difference to my report, but I did correct it. When I went back looked at my notes, I miss typed it from my notes, they were right. So if it’s a factual issue about something about your client, like said they did therapy, or didn’t do therapy, or the dates are wrong, then absolutely I would contact that evaluator and say, hey, this, this and this has been reported, about client is incorrect. 

Can we talk about that? Check your notes? And if it’s wrong, I would ask them to fix it. Absolutely. The issue is, is do they think there’s an actual fact about them? Or do they not like what the other person said? And that doesn’t mean that they took it as true. Does that make sense? Because I’ll often when I do work, product reviews, I ask the attorney to get any information from the client that they think is wrong. And I have to be real clear, not what the other person said was, but what they actually think is factually wrong from what they said, because you both get to say what you want to say in a custody evaluation. And what both sides are not going to agree with that the other party said. But if it’s a factual issue, that’s significant, then yes, absolutely. address that with the evaluator and ask that they correct the report if that mistake does exist.

Holly: So another issue that attorneys can see is having trouble getting into court for a trial, and there being a significant delay between whenever the custody evaluation comes out, and whenever there’s going to be a trial on that issue. So obviously, the more recent, the better if you’re trying to rely on it. But if there’s a long lapse of time, that is no fault of the parties, or the evaluator before trial, how should attorneys handle that?

Christy: Well, if you know, COVID, is part of the problem with that, as we all know, as far as the delay was a lot of those trials, if there’s a chance to get it updated, which every evaluator if they listen to this is gonna want to shoot me. But because updates are hard, you’ve already made somebody upset, and they interrupt your normal flow of the evaluations you’re already trying to complete. But if there’s if there’s a reason to update would be my question, if there’s been a substantial change since the original report came out, if somebody’s gone to therapy and fix their behavior, if the child’s either started to do better, or is starting to decompensate, you may want to look at getting an update. 

But the problem is that you’ve got to back that up far enough to give the evaluator time to do it, or you’ve just postponed your litigation even further. The other option is to how do we fill the gap of time? How do we help the court know what’s happened from point A to point B, asking that evaluator to sit in the courtroom through part of that trial, to get the updates, if that makes sense to hear the parents testimony to hear the therapist testimony to see if there’s any new information that they may hear that may warrant a change to their opinion. Now, they may not be able to prove make their change their opinion, just off of what they heard in court. 

But at least they can tell, hey, there’s been a significant issue, or pretty much the same issues that were going on when I finished this a year and a half ago, it just sounds like more of the same. That I think helps that opinion be more relevant at that point. But that’s a lot of money. I get that for to pay an evaluator to sit there that long. But but that’s a way to mitigate that or does just make sure that the judge hears all the information that’s happened that year and a half that’s pertinent to the judge making that decision, and seeing that that anything new matches what was going on in the report and that the report is still valid as far as the final decision.

Holly: In order for a custody evaluator to do any type of update, are they going to need another order from the judge requiring them to do it?

Christy: I wouldn’t do anything without an order. I think that’s the only way we have quasi judicial immunity as if it’s done by court order. It’s certainly what our our licensure boards are looking for when we’re doing this kind of work if there is a board complaint where you court ordered. So I will want to in order to know you know how you need to update this evaluation. And here’s your new questions. And exactly what needs to be done in that update. Do you need them to update and do the whole thing?

Do you need them to redo their psychological testing? Do you need to re get records on everything? Or is there certain information or certain things that have happened? And this is only the information you need to do or only this amount of they still have to do everything they need to do in the code, but certainly you can limit some of that because they don’t have to go as far back. They’re just updating from point of report forward.

Holly: Is there any amount of time that can pass where we can say this custody evaluation is no longer valid.

Christy: That’s really hard to know. That’s case by case. That’s family by family. Because I think at the end of the day, there’s always valid information, not always, but usually valid information and a family code that’s helpful to the court. It may not be the actual opinion or opinions may have changed, but there usually is information that’s beneficial. But really, it’s case by case family, by family, if we’ve had a remarriage and extra babies and a change in the schedule that they agreed to, you know, if there’s been somebody has been hospitalized for some reason, or gone to jail, for some reason, that certainly could make that, you know, evaluation obsoleted that point, but it really is case by case, family by family, I’ve testified on a case as much as two years old. So and that’s not ideal, but it happens.

Holly: So in a case like that, where you’re having 18 months to two years between completion of evaluation and trial, I know you mentioned sitting in the courtroom and listening to testimony, is it appropriate for attorneys to give you information prior to trial, that you can sort of do the same thing? If there were deposition transcripts? Or there were discovery responses? Or any something else noteworthy that came out? Is it appropriate for you to receive those and review them?

Christy: I think that depends on your evaluator. I’m not once I’m done, I’m done. My court order’s done, the minute that report is published, and the notice is sent to the court that it’s finished. So anything you want me to do after that I’m going to request a new order, I think there are some evaluators that might be willing to look at that information. But it becomes an issue, if you open that door, are you gonna walk an elephant through it and dump everything on me, that’s happened in the last two years and basically backdoor an update, that’s usually my concern, is there’s an effort to backdoor an update without paying me for that getting a proper order and having me do the proper steps. So it’s hard. It’s a it’s a rock and a hard place on those cases, it just is. 

Holly: So if you could offer one piece of advice to family lawyers, what would it be?

Christy: I kind of hit on one. So can I have two? I’ll make it short. One is be nice. I’ve already said that be nice. The other thing I will tell you is get if you if you are looking at a family that needs a custody evaluation, and you believe that, you know, my client could benefit from therapy, or there’s no question, these people need a parent of facilitator, or we’ve got a kiddo who’s starting to resist contact with a parent or outright reject contact with a parent, don’t wait on a custody evaluation to get those pieces in place. Especially an individual therapist for your client, and more importantly, a reunification therapist for those children in those families. Time’s the enemies on those cases. 

The longer you wait and if custody evaluations take six months to a year to a year and a half to complete, a kid going without seeing a parent for a year and a half is I mean, that is just damaging to the ability to repair that relationship long term. And the reality is in the middle of a custody evaluation, give me a parent facilitator, give me an individual therapist, give me a reunification therapist, that’s great data. And it helps get a more accurate custody evaluation and accurate opinion at the end versus you get to the end of a custody evaluation. They go, hey, you need a parent facilitator or hey, you need individual therapy, or hey, go to reunification therapy and see what happens, versus get those pieces in place early. And allow that to be part of your evaluation. And hopefully, you actually get a really good conclusion that it can actually put an end point to that litigation and get that family moving forward.

Holly: So if there are outside professionals like that working with the parties, or the children in a particular case, and you’re doing a custody evaluation, do you deal with those professionals along the way? Or do you wait till the end and check in with them? Or to what extent do you communicate with those professionals?

Christy: It depends on the case and the issues. I will certainly I mean, because I’m just data gathering, so I’m not a part of the clinical team. I’m a forensic evaluator. Our roles are very, very different. But I might call and go okay, hey, can I get your notes through this day? And can you kind of give me a quick update of where we are? Because that’s going to help me ask questions of the parents or ask questions of the children. And then I’m probably going to do a follow up towards the end. Or right at the end as I hey, can I have one more phone call? 

Can I get an update of all your records to this point, and make sure I’ve got a complete file. So a lot of times I’m gonna let therapists do their work. I’m not poking my nose in where it doesn’t need to. But sometimes I need that information along the way to help me know what else to ask. So some some mental health professionals I’ll never touch base with until we get to the end. And some I’m gonna touch base a little bit along the way, just so I kind of have an understanding what’s going on to help my process be as thorough as possible.

Holly: So one other question that came up, something came up really early in our talk that I was just curious what you think about it and what your position is, was referencing kids under three, because in the family code, we have no guidance whatsoever about what to do with children under three. And it can be you know, very judge specific as to what might happen in your court. What do you, what are issues you see with kids under three?

Christy: Well, obviously, there’s a reason we don’t have specific schedules, or at least they don’t apply to the family code standard access schedule for children under three that exists that way for a reason. Our code has some factors that are considered there’s some potential revamp of that going on legislatively as we speak. But research is real clear that children under the age of three actually need to spend ongoing consistent time with both their parents and that includes overnights that includes overnights from infancy, that’s important for that, you know, bonding phase and that attachment and that connectedness that that kids need to be developing with both their parents. Kids need to have opportunities to have both parents wake up with them in the middle of the night, when they have a bad dream, or they need their diaper changed, or they need, you know, a bottle. 

They need to know they can count on both parents to do those things for them or during their nap time or during the day. So they’re not just two hours of playtime, you know, three times a week. And there are great schedules for that actually, when we originally worked on the under three statute, I think that was 09, it may have been 2011. I don’t remember which one. But we originally talked about it, we actually had three schedules that were considered. And those were presented at mance family law that year, that a lot of judges still use. And they were a schedule for if you’ve got a case where a child and a parent have never met kind of what I would call a unification case. 

So kind of how do you ramp that schedule? And then well, we’ve got more traditional roles where one parent stay at home and one parent work kind of what schedule can you do for that. And then you’ve got a schedule where you’ve got two parents who pretty much were equally involved with that child, and just things for the court to consider in that regard. But Arizona in particular has a great schedule, you can actually Google parenting plans in Arizona, and they’ve come up with 0 to 18, all sorts of different schedules you can consider and it’s got all sorts of options for based upon what’s going on in the family, and in their research based, because of some of the research is going on out there and one of their major universities, from somebody who’s well respected in our field. 

So that’s a great place to look. But there’s great schedules, but you’re looking at for who’s been parenting that kiddo who’s, who’s been to the doctor’s appointments, who’s the one primarily meeting that child’s needs, but it doesn’t mean just because even you’ve got a traditional family setup of one works and one stays home, that that can’t shift at the time of divorce. And that child needs an opportunity to have those experiences with both parents and trust both those parents to be available to parents and when they need it. Does that answer your question?

Holly: Yes, that’s great information, I will definitely go seek out those, those three orders you mentioned, as well as the Arizona information.

Christy: And I’ve got those and can shoot those to you if you’d like them. 

Holly: That’d be great. I would love that. Save me the trouble. So we’re just about out of time, but where can our listeners go to find out more information about you?

Christy: Sure. primary place to be go to my website. It’s txfamilylawforensics.com. And they can find out they can find me there and all the information about me and my services and how to contact me. And then I’m on LinkedIn, Christy Bradshaw Schmidt and my LPC and just under my name.

Holly: All right, well, I cannot encourage people enough to use Christy as a resource and as an expert in your cases because she is a wealth of information and has helped us out in many times at our firm. So thank you so much. 

Christy: Appreciate it. Thank you.

Holly: Thank you so much for being our guest today. 

Christy: Appreciate the opportunity.

Holly: Look forward to seeing you soon.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com

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We’re excited to welcome Judge Marilea Lewis as our guest today on Texas Family Law Insiders podcast. Judge Lewis is currently a partner at the Dallas based family law firm Duffee and Eitzen. She is board certified in family law, spent almost 25 years on the bench, and has received dozens of awards. She received her undergraduate and law degrees from Baylor University. Outside of work, she’s actively involved in a wide variety of community organizations. And she’s even a certified yoga instructor.

On the show we chat with her about temporary orders hearings, as well as:

  • Why temporary orders are the most significant part of many family law cases.
  • How to determine where your most significant issues will be in your case.
  • What your clients should and shouldn’t do when answering questions from opposing counsel.
  • How to use your limited time on the stand wisely.
  • Some of the common mistakes she sees lawyers making at temporary orders hearings and the three things every female attorney needs to do to get prepared for practice.
  • And more

Mentioned in this episode:

Transcript

Marilea Lewis: Don’t believe that every word that your client tells you is going to be accurate and borne out by the evidence. Remember, the truth is perception. And perception varies from person to person.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, attorney Holly Draper.

Holly Draper: We’re excited to welcome judge Marilea Lewis as our guest today on Texas Family Law Insiders podcast. Judge Lewis is currently a partner at the Dallas based family law firm Duffee and Eitzen. She’s is board certified in family law and spent almost 25 years on the bench. Judge Lewis served on the bench of the 330th Judicial District Court in Dallas for eight years after serving as the associate judge in the same court for 10. She’s widely respected as one of the top family lawyers in the state. Judge Lewis has been selected as a Texas Super Lawyer in Family Law every year since 2012. And has also been recognized by Thomson Reuters among the top 100 attorneys in Texas, the top 50 women attorneys in Texas, and the top 100 attorneys in DFW. 

She’s been selected as one of the best lawyers in America by Woodward White since 2013. Recognized as one of the best lawyers women in the law since 2016. Named to Lawdragon’s Best 500 Family Law Lawyers in 2020, and has repeatedly been recognized by D Magazine’s Best Lawyers in Dallas. And she’s a winner of the Exemplary Judicial Faculty Award by the Texas Center for the Judiciary. Judge Lewis received her undergraduate and law degrees from Baylor University. Outside of work, she’s actively involved in a wide variety of community organizations. And she’s even a certified yoga instructor. So Judge Lewis, thank you so much for joining us today.

Marilea: Well, Holly, I’m delighted to be here. Thank you for inviting me.

Holly: So today, we’re going to talk about temporary orders hearings and how to try the temporary orders hearing. But first, can you give us a little bit of background about how you got started in family law.

Marilea: I began practicing family law when I was a fairly new lawyer, I had started with a small civil firm and decided pretty early on that personal injury and worker’s compensation were not good for me. And in light of the decisions and laws that have passed since that time is probably just as well. But I also became very involved in juvenile law practice, and as a transition from juvenile law, family law. And I would say that probably by my third, or possibly fourth year in practice, I was doing family law primarily. I thoroughly enjoyed it because it had a personal element that some areas of practice didn’t. And it was a situation where I felt I could actually help folks through a very difficult time.

Holly: I was the same way. I started out at a civil defense firm and found my way to family law. I’m definitely glad that’s where I ended up. So can you describe how you got to where you are today?

Marilea: There was an available position in the 305th district court, which is a statutory court for juvenile law cases, and my very good friend was moving on to a county bench. She called and said, there’s going to be an opening if you’d like to consider it. At the time, I really hadn’t thought about moving onto the bench, but it seemed like a wonderful opportunity to actually do what I enjoy doing on a daily basis. I applied and fortunately was selected and served as the associate judge, although in that time, when I first began, I was known as the master referee of the 305th district court for a period of six years. During that time, the title of master was amended to become an associate judge. 

So I was also designated as a magistrate so my title at the time eventually morphed into associate judge, referee magistrate, for the 305th district court. When Judge Bedard began looking for a new associate judge because her associate Judge Barbara Rosenberg had been appointed to the Court of Appeals. I made the transition at that time from the juvenile court into the family law court. That was early 1992 and she’s really showing my age here, but I was the associate judge of the 330th under Theo Bedard and I could not have asked for a better mentor than Judge Bedard. I was very fortunate to serve with some wonderfully strong, bright, dedicated people. And I was the associate judge from 1992 until my appointment first in 2002, and my subsequent election in 2002, and I served as the district judge through December the 31st of 2010.

Holly: So how’d you describe your current practice?

Marilea: My current practice is certainly divided between mediation and arbitration, which I do, and litigation. I’ve always enjoyed being in the courtroom. As you said in the opening remarks, I did go to Baylor Law School. And the thing that Baylor Law School focuses upon is litigation practice, or at least training lawyers, so they know how to walk into the courtroom and not have to take a quick refresher course before they enter. So I’ve always enjoyed litigation. And this practice allows me the opportunity to litigate cases, also to arbitrate and mediate cases. And even to do some transactional work. As you know, prenup bill prenuptial agreements, postnuptial agreements, partition and exchange agreements, those sorts of things are going to be primarily transactional. I’m also collaboratively trained. And as a perk of having served so long on the bench, I can serve as a special judge if anyone is trying to use the services of a judge without the arbitration process, but more in actual litigation situation.

Holly: But when you act as a special judge, is your decision binding on the parties?

Marilea: It is a it’s a judicial rendition. Of course, naturally, it goes back for approval by the sitting district judge.

Holly: All right. So today, we’re going to specifically talk about temporary orders hearings. And we all know, that’s a very significant part of many family law cases, and can often be the only actual hearing in a case. So it can be very, very important. Can you walk us through how you usually prepare for temporary orders hearings?

Marilea: Temporary orders hearings are extremely significant. And I cannot stress this enough, especially for practitioners who are newly involved in family law cases. The temporary orders hearing will set the tone of the litigation in my opinion. You want to be sure that you are prepared for a temporary orders hearing as much as you possibly can be in terms of knowing the financial situation of the parties, knowing the needs of the children, knowing what testimony you’re going to offer. The challenge with the temporary orders hearing is you frequently are given quite significant time limitations. And it’s very difficult to get everything you would like to get before the court in a limited amount of time. Whereas in a family law trial for final merits on the case, you can have a great deal more time, you’re going to have possibly 20 to 30 minutes per side. 

Occasionally, if you get a special setting, you can have an hour to an hour and a half per side. But you’re not going to have the full day two days, three days that you would have for a trial on the merits to actually develop the evidence and get all of the evidence and testimony before the court. So when you’re planning for your temporary orders hearing, you’ve got to look to the most significant points. are you focusing primarily on the needs of the children? Who should be the temporary, primary parent? Are you focused on the financial aspects? Are there significant financial resources for both parties to continue to meet their minimum basic needs, if there’s no support given or the support is very limited? If there’s family violence, that’s something you want to focus on from the outset. 

That’s not something you want to wait until three or four months down the road to raise as an issue. So when you’re focusing on getting your temporary orders, preparation done, identify the critical areas, finances, use of the property, parenting time with the children, mental health of the parties, mental health needs of the children, substance abuse, you’ve got to determine where your most significant issues will be. And then direct your questions and your witnesses to those areas. It is also essential that before you put any witness on the stand, whether it’s your party your client or not, that you know what the witness is going to say. I can’t tell you how many times lawyers experienced lawyers came before me on a temporary orders hearing and had not spoken with the witness. 

They relied on what their client told them the witness would say. And sometimes your clients perception is not accurate. Stop and consider they’re in a real emotionally charged time of their life. So their perception may not be accurate or their recall, recall may not be accurate. You got to do the investigation yourself. So before you put anybody on the stand, know where you’re going and know what they’re going to say.

Holly: That’s excellent advice. Do you, to what extent do you prepare your client? Or how do you prepare your client for cross examination at temporary orders?

Marilea: I think the best way to do that is to try to have an understanding of what the opposing party is going to be asking for. If you’re focusing on conservatorship, and they’re focusing on use of property, you’re kind of out of sync. And so what’s going to be important to your client isn’t going to allow you to prepare your client for how that other opponent or opposing counsel is going to be questioning your client. So preparing your witness for cross examination, you’ve got to do pretty broad questions. The things that you have to tell the client is, listen to the question. Answer only the question that is asked. You’ve got limited time, don’t go off into a narrative. Answer the question, if you don’t understand the question, ask the question be rephrased. If you don’t hear the question asked question be repeated. Don’t try to evade or avoid an answer. Answer truthfully. Once you’ve got those points, then it’s easier to say. 

And if you’re asked about your marijuana use, if you use marijuana recreationally, your answers is not going to be no, I don’t use I don’t use marijuana. Your answer should be I have used marijuana. I have used it recreationally fess up to it. Don’t try to avoid it. You know, and the other thing you don’t want your client doing is arguing with opposing counsel. Sometimes that’s difficult to get across because the clients don’t realize that they’re actually arguing. But when their response is well, why do you ask that? Why do you need to know that? I don’t think I need to tell you that they’re arguing. And that is not going to set a good tone for the hearing, or make a good impression on the judge.

Holly: Yeah, I always try and let clients know that the opposing attorney is almost always going to be trying to get a yes or no answer from them. That is probably not good for them. And there may be an explanation, and I try and encourage them to start giving that explanation. And if they’re cut off, at least then I know there’s an explanation. Like in your marijuana hypothetical, the attorneys probably gonna say you’ve smoked marijuana, haven’t you? Yes. But you know, start with the but and the attorneys gonna cut them off. But at least I know there was a but.

Marilea: Right? That way, you can go back in and clean it up. That reminds me of the Kathleen Turner answer in Romancing the Stone. You smoked marijuana, haven’t you? Well, yes, I went to college, I mean, a responsive answer. But anything beyond yes, is going to be considered non responsive. So you do have to work with your client. And they’re going to have to accept the fact that opposing counsel knows a lot more about them, than they would like that attorney to know. You’re in, they’re getting a divorce, or they’re dissolving their relationship in some shape, form or fashion. So ordinarily, the opposing party is not going to go in and be saying good things about the your, your client. Ordinarily, there’s not going to be a lot of gratitude expressed for all the good work that your client has done. 

*So they need to be prepared for the fact that if they have any skeletons in the closet, that closet door is going to be open wide, and they just need to be prepared for it. And the other thing only that is absolute sorry, that is absolutely essential is that your client must understand that he or she must be honest and candid with you. But I have a glass of wine when I get home from the evening can sometimes turn into I have a bottle of wine when I get home in the evening. So when the spouse comes in, with a photograph of the nine bottles of wine that had been drunk just in the week, rather than having a bottle of wine or possibly two bottles of wine, it makes you feel like you have not been told the entire truth by your client and it puts you at a disadvantage and certainly makes your client look non-credible.

Holly: Yes, there is nothing worse than having your client on the stand admitting to something you knew nothing about.

Marilea: Right or even alluding to it. You know, when you’re when your client opens the door and says, do you consider wine alcohol? But I asked is it true that you drink alcohol on a regular basis? The answer should be I drink wine. Yes, I drink wine. You know, you’re not trying to slip one past opposing counsel or the judge because that’s never gonna work.

Holly: So yesterday, I posted something in the Texas Family Lawyers group trying to get a feel for the time limits across the state because I know I practice regularly in Collin and Denton counties, and they have very short time limits. But I didn’t know if that was common. And it It sounded like there are a lot of counties that are in the 30 to 45 minute range. But there are also a lot of counties that have no limits at all. I was really surprised to hear such a wide variety. So what when there’s a really short time limit 20 or 30 minutes, sometimes even 45? What advice would you give to attorneys that are experiencing those short time limits for the first time.

Marilea: One of the things that I’ve appreciated about the judges in Collin County is they recognize that they put you on somewhat stringent time limitations. But they also allow you the opportunity to provide a summary of requested relief that may or may be more expansive or extensive than you could provide in other counties. They want to know what’s at issue. And consequently, if you’ve got a great summary requested relief, a very detailed summary of requested relief. It’s going to be a summary of your client’s testimony, you can put your client on and say, did you help? Or did you draft this? Did you assist in the drafting of this? Does it accurately reflect what you’re asking this court to do? Do you believe that this would be in the best interest of your children? 

Do you believe that these financial needs are being addressed appropriately? Is this something you think you would want the court to order as a temporary order? With a few very quick questions, and the admission of that summary of requested relief, you can move on to other matters if there are extraneous matters or other witnesses. If you need other witnesses to address issues like child care, or substance abuse or family violence, something else that might be also very important, but a good summary of requested relief. And of course, Holly, one of the things to consider now is with the new discovery rules, you’re going to have a lot more information, or you should have a lot more information depending upon the timing of your temporary order, then you would have had six months ago. 

Now that we are producing so much more information, for purposes of initial filings, the practitioner is going to have a great deal more documentary evidence of what’s really going on with the parties, they’ll have the 194 disclosures for one thing, but they should have supporting documents to go with that 194 disclosure. So that’s something to consider the timing of your temporary orders hearing is going to be significant. I believe that everyone’s going to have to get used to the timing of asking for temporary orders unless it’s truly an emergency if a party gets served, and has the Monday following 20 days, but once they serve, once they answer, then they’ve got 30 days in which to exchange all this discovery, then is it going to be advantageous to ask for a temporary orders hearing prior to the expiration of 30 days? Or do you wait until you’ve already gotten all of that information? 

So that’s something to consider is the impact the new discovery rules are going to have on the temporary orders hearing. Now, the other thing you need to consider is the effect of the standing order and what impact that has on your client for purposes of temporary orders. If the other party doesn’t get served or doesn’t respond in a timely manner, even though the case has been filed, if your client is the only one who is subject to the standing order, how’s that going to impact the ability of the party to actually get to funds, make orders or I’m sorry. Make appointments, do whatever needs to be done in the interim. So timing of a temporary orders hearing is very critical as well.

Holly: I think you’ll have to really consider on a case by case basis how urgent it is to get that temporary order. Is it more important to get into court quickly? Or is it more important to have that extra information before you go?

Marilea: I agree. I think one of the things we’ve learned from Zoom is that it is very frequently beneficial. In fact, in almost all cases beneficial to have to exchange documents and exhibits prior to the actual hearing. Whether you have to exchange documents three days before the hearing, or the morning of for an afternoon hearing, or by 5pm, the day before you that really gives you an edge in your hearing, that way, it’s really not a surprise, and everyone’s pretty much on a level playing field.

Holly: I hate having to exchange exhibits early. It takes all the fun out of catching the opposing party and a lie, and then pulling out their Facebook post where they said something else.

Marilea: I agree and it is difficult. That’s a great deal of fun that Perry Mason moment, you can go but what about this document and the party just kind of recoils. But of course you don’t get much of that recoil on Zoom. When the judge is looking at a screen this size, and the litigants are this big. You don’t really get the same true effect, as you did with the witness and the witness stand in the courtroom.

Holly: Yeah. So one of the things I was thinking about when I was considering the short time limits for temporary orders are cases where there’s a really high burden you have to overcome to get a certain temporary order such as you’re trying to flip custody on a temporary basis. And you have to prove significant impairment, or other cases where you have non parents involved and they’re needing to overcome the fit parent presumption or they’re needing to show significant impairment for standing purposes. Do you think it’s really possible to overcome those burdens in 20 or 30 minutes?

Marilea: It’s like trying a family violence protective order. If you’ve got 30 minutes per side, you better use the first five minutes to get your scariest stuff out first. You don’t walk your client through well, we got married on this day. And you know, for six months, we did this and a year we did this. You get to last night. She decked me or last week, he slapped me so hard I flew across the room. You got to put on your scariest stuff first. Because you you are going to have limited time. Same thing with a high burden. What is your burden to prove? 

This is not a situation where you can develop your narrative. You’ve got to know your evidence. You’ve got to anticipate objections from opposing counsel. If your evidence is child came home from parenting time with the other parent and said, Daddy spanked me that’s why I have all these bruises. Opposing counsel’s going to check because by the time the child got home, was it hearsay? Do you know the exceptions? Do you know the way to get that testimony before the court? If the child is five, and not subject to interview by the court? 

Or if the child comes home and says mommy has been smoking some funny smelling cigarette all day every day while I was with her. Is that going to get into evidence? You’ve got to be prepared not only from the evidentiary standpoint, but also for a way to protect that evidence and make it admissible. So don’t just think that you’re going to be able to go in and say, well, the child said this. Oh, it was an excited utterance. Was it three days later? Does that qualify? 

Because you’re going to have quite a few judges in this state are going to go really making the test? Because if you say, well, how is your weekend? And the child responds, oh, it was great. And you know, Mom, was smoking funny smelling cigarettes all weekend. Does that qualify as an excited utterance? Is that a present sense impression? What exactly are you going to have to do to be able to get that evidence before the court?

Holly: That’s the problem in family law cases, a lot of times that information is coming from the children. One of the things that our firm has been doing a lot and those situations where we really don’t have a good way to get that evidence in. I mean, obviously, we can say isn’t it true that you were smoking a funny smelling cigarette all day, the other day? They could deny it. But one of the things we’ve been doing is then trying to request an amicus attorney or something like that as a way to get what the child has to say before the court. Do you have do you do that? Or are there other ideas you have in that situation?

Marilea: Well, I think that certainly asking for drug testing instanter based upon information and belief, not personal knowledge has been successful in many cases, because most of our judges, if not all of our judges are going to want to err on the side of caution. And if they believe there’s any need for it, then by all means they’re going to order it if it’s seen as a means of protecting the children. Now, I think that ordering a drug test, whether it’s a ua or whatever, is different than asking for sober link for 90 days because if you’re going to go in and say this person has a significant substance abuse problem and I want him or her on scram or sober link or whatever for 90 days then you’re going to have to prove that there’s a significant problem because you haven’t met your threshold test. 

And you may not be able to do so in the limited amount of time that you have. But asking for a preliminary baseline test, I think is never necessarily wrong. You have the right to do it. You’ve got a lot of tools available in family law that aren’t available in other areas of practice and all of my colleagues in civil practice are just constantly astonished. I was speaking with a partner of mine who at a former firm who does primarily civil work and as well let’s just get a psychological evaluation. And he looked at me and he said can you do that? Well yes as matter of fact you can. It’s what Jeff Cohen always used to say about the difference that in practice. In civil law the courts can take your money and criminal law the courts can take your freedom. In family courts the courts can take your money your freedom your children and your dog, so be aware of where you are and the authority the court has to make orders.

Holly: So kind of changing topics just a little bit. There are certain counties Dallas being one of them I think Harris there may I’m sure there are others as well where you have your temporary orders hearing generally in front of associate judge. But then you have the opportunity to de novo if you aren’t happy with the original ruling. Does it change your strategy at all if there is a possibility of a de novo?

Marilea: No not my strategy because I assume that everything is going to be de novoed. Whether I de novo it or my opposing counsel de novos it, I just operate from the presumption that there’s going to be a request for de novo so I’d better do my very best job that I possibly can at temporary orders. Now the associate judges in Dallas do yeoman’s duty in terms of how they’ve been adapting with the Zoom hearings and trying to accommodate all of the many cases that they hear. So I really appreciate their dedication and devotion. And that’s been my experience with judges across the state who are all trying to do the very best they can in a very difficult situation. 

But if you take the position that you’re going to have to do this a second time you might as let’s get it right the first time because it’s much harder to get it the second time. Meaning if you got it right the first time and your opposing counsel de novos the chance of the district judge doing anything completely different is slim to none unless you’ve got a great deal of different evidence than you had at the temporary orders hearing. So you want to do it right the first time. It’s just like a final trial Holly and you should know this. You go in thinking somebody’s going to appeal something so I want it all on the record. And you want to get it right the first time because in my mind it’s much more difficult to overcome a negative ruling than it is to actually defend a good ruling.

Holly: So with the de novo it’s supposed to be a clean slate though right? It’s supposed to be like the first hearing never happened but in practical reality that’s not the case. Would you agree?

Marilea: Sadly I would. I’ve had that discussion with many people about de novo and I always am somewhat surprised when I get a ruling that says the ruling of the associate judge is affirmed. That’s really not what’s supposed to happen. What’s supposed to happen is the district courts supposed to make a ruling and not consider the orders that are or the ruling or the report or whatever that the associate judge did. So that is something that we do have to kind of watch for.

Holly: Do you recommend that all attorneys if there’s not a court reporter in associate judge’s court that they have one there for the temporary orders hearing because of the possibility of de novo?

Marilea: Depends on what your client’s going to say? Your clients the one smoking the funny smelling cigarettes no why would you want a reporter? It depends on what your evidence is going to be. Reporters and records are great you know for a lot of years people would choose to do that simply because they were using a temporary orders hearing as an examining trial. When they determine when they when folks many years ago believed that the de novo had to be held held within 30 days, then the temporary orders hearing really was just free discovery. And so having a recorder was actually beneficial. Because of the changes in the family code. And because of the changes to the discovery rules and the recent opinions of the court, I don’t know that a reporter is as necessary, there are cases where you are going to want to record simply because of the nature of the testimony. 

But you do need to be careful about that, because that’s going to increase the cost of your litigation tremendously. Just because you get your court reporter ready at nine o’clock in the morning, your case doesn’t get called until 11. You’ve already paid an appearance or an appearance fee for the reporter and two hours of the reporter’s time, even though he or she hasn’t taken a single word of testimony. So that is something that can be very, very beneficial. I use reporters frequently, not necessarily for temporary orders hearing. But for orders after the initial temporary orders hearing, when we anticipate there will be much more substantive information available.

Holly: What are some common mistakes, you see lawyers making at temporary orders hearings?

Marilea: Lack of preparation, is the biggest one. Lawyers, some lawyers tend to become complacent, oh, well, this judge always does 50-50 or this judge is never going to kick one parent out of the house, or this judge is never going to do this or this judge always does that. And they become complacent and assume because the judge may have ruled in a somewhat consistent manner, on things in the past that the judge is going to rule the same way in every case. And my experience with the judges across the state has been that they do try to hear everything and decided on a fact by fact basis. They’re not listening to the case, as if, oh, this is the same case I had last week, they are listening to the case that’s before them. And so they’re going to listen for the facts and decide it on a case by case fact driven basis.

Holly: One of the common mistakes that I see is lawyers coming into a new county or a new particular court for the first time and not really being familiar with their procedures. I had a case in Collin County once where the other lawyer apparently had never had a temporary orders hearing in this particular court, and didn’t realize they really mean it when they say 20 minutes a side, and you will get cut off and you will not get to continue with your case. So she spent nine minutes on an opening statement. And that really killed any opportunity of success. She never even got to any of the meat of her arguments. And I think if she had spoken with the lawyer who regularly practices in that court, she would have known a it’s 20 minutes aside, it’s ticking down when you run out you’re cut off, you do not get to say anything else.

Marilea: And you know, opening statements, I’d much rather make a closing statement than an opening statement, because the judge is going to decide what the evidence is, and was. And so when you spend time, say, and the evidence is going to show, and we believe the evidence will show the court will hear that. Now, if your opposing party makes or opposing counsel makes an opening statement and makes promises to the court about what the evidence will show. I’m sure you want to take note of that. So you can say, Judge, you were told that you were going to hear XYZ but instead you heard ABC what happened to the promise made that you were going to hear this evidence, we asked you to deny the requested relief. Opening statements should not be the bulk of your presentation at a temporary orders hearing.

Holly: Would you do them at all, at temporary orders?

Marilea: Occasionally I do but I never do them right after my opposing counsel. If I’m the respondent, I will always defer until presentation of my case in chief, because I then have some knowledge of what the evidence has already shown. If I’m the petitioner or the movant, it may be a 60 second overview of what we’re trying to accomplish. The evidence is going to show that my client needs this because. Let’s hear from the evidence because you know, what we tell juries all the time is whatever the whatever the attorney says isn’t evidence. It’s the same thing for the judge in a temporary orders hearing. Argument isn’t evidence it’s argument. And our judges know the difference.

Holly: Like I like to be able to give a brief opening but when it’s 20 minutes a side, I almost never do unless there’s some very unique issue I need to make sure the judge is aware of before we even get started. You’ve said a couple of times about preparation being the key and unfortunately, not all clients have a lot of money to pay for extensive preparation for a temporary orders hearing. What advice would you give to attorneys who are trying to prepare for a hearing on a tight budget?

Marilea: You still need to be prepared. Your preparation may look different. You may not have all the bells and whistles, meaning the PowerPoint and they wonderfully marked exhibits and the color coded graphs and everything that you can have, when the sky’s the limit. But you still need to talk to your client, and to whoever you’re going to call as a witness, that’s preparation. Don’t put your client on the stand without telling your client, what’s going to happen. You’ve got to manage expectations. And you’ve got to let your client understand this is not a dress rehearsal. 

It may be ultimately turned out to be one, but you can’t go into it with that thought, you’ve got to go into it thinking I’m going to do the very, very best I can, because I want my opposing counsel to have to be the one to de novo this, if in fact there’s going to be a de novo. So you’ve got to be prepared. And you know, the judges do appreciate organization, they do appreciate having your exhibits marked and knowing that they’re going to be admissible. You know, if you’ve got some while exhibit that is just wonderful, but totally inadmissible. either take the time to have a plausible reason that it should be admitted, or don’t waste your time trying to get it in. Work with what you’ve got. That’s all you can do.

Holly: In our office, we always send questions to clients in advance. I know not all attorneys do that. But one of the things I like to do is try and figure out do I have a very talkative client? Or do I have a yes/no client. And the talkative ones when we have a time limit, I’ll always have a discussion with them about okay, if you start, I know you have a lot to say, but we need to make sure we get to everything. If you’re talking and I say thank you. That’s your cue to stop.

Marilea: Right? I always hate to direct to my own clients answers is non responsive. But occasionally, you have to do that to get them to be quiet, because they’re just burning up the clock. And you’ve got so much more to get to.

Holly: So if you could give one piece of advice to young family lawyers out there, what would it be?

Marilea: Oh. One? 

Holly: If you have more than one, I’m happy to hear them.

Marilea: I can tell you my number one would be if you don’t enjoy family law, go do something else. This is an area of practice that is not something that everyone enjoys. I think counselors, young lawyers who come in with the misperception that, oh, it’s family law, it’s going to be easy. It is not easy. It is challenging. If your clients are in a terrible place in their life, or narrowly whether it’s a divorce or a modification or whatever brings them into your office, they are not happy. And that’s why they’re coming to see you not that you’re necessarily going to make them any happier. 

But they’re not happy. And consequently, you need to be able to deal with their client who I’m sorry to deal with their issues, give them the best possible legal advice, and be able to separate your life from their lives. But you’ve got to enjoy it while you’re doing it. I’ve seen too many young lawyers, who sadly get too involved in their clients issues and can’t separate and that takes its toll on them. And then there are lawyers who just kind of compartmentalize the client’s issues, and don’t necessarily provide the best advocacy that they could. But the people who tend to not do as well in family law are those who don’t enjoy it. I mean, don’t have a passion for it. If the attorney’s desire is to go help build buildings, then he or she needs to be in construction law or doing something else. 

It isn’t being in the courtroom on a routine basis in a family law case because that’s what they find available. So my advice would be don’t do family law unless you enjoy it and feel passionate about it. Because it’s going to take its toll on you. I do not know a single lawyer and Holly I don’t know if you do that has not spent hours working for a client without any expectation of getting paid, worrying about a client to the point that it actually interferes with what you may be doing in your own life. Or arguing with the client because they have such unreasonable expectations. So family law is a demanding, challenging practice. And so I would not recommend it for someone just as a side practice. It’s got to be your focus.

Holly: And I agree completely about having to compartmentalize it but also being compassionate about it. You have to find that right balance and I feel like i’ve been doing family law since 2008 and for the vast majority of cases I’m able to separate my personal and professional life. Still care about their case care about the client want to do a great job for them but be able to sleep at night. And there’s certainly been a handful over the years that have kept me up at night and were you know extremely stressful. Thankfully there’s been few and far between but it definitely comes with the territory.

Marilea: It does and one thing young lawyers need to learn to do is not become true believers. Your client is going to tell you his or her perception and frequently what he or she wants you to believe. You cannot assume that every word that comes out of your client’s mouth is the absolute truth. And you can’t assume even if it is the absolute truth that is the only truth. I had a case many years ago that was just confounding because the issue was where do the children spend the afternoons. And mom was saying oh they’re at my house five afternoons each week. And dad said they’re at my house three afternoons a week. Mom brought in four witnesses who said they saw the children playing in her front yard at least ordinarily four to five afternoons a week. 

Dad brought in four witnesses who said of these children over at my house ringing my doorbell three or four times a week in the afternoon each week. It was truly one of the more interesting cases because trying to ferret out what actually was going on was a challenge. So don’t become a true believer. Don’t believe that every word that your client tells you is going to be accurate and borne out by the evidence. Remember that truth is perception and perception varies from person to person. Also there’s going to be three sides to every story in a family law case. His hers and the judge’s truth. So you’ve got to take that into consideration as well.

Holly: And also letting clients understand that the judge’s truth may not be the truth that they want so if they can reach reasonable agreements maybe they should do it.

Marilea: Yes and that’s a significant thing that young lawyers need to do is they don’t need to see agreement as some failure. If anything agreement is much more a victory. Anything you can do to prevent your clients from having to get on the witness stand and bear their souls is beneficial. Because once those words have been spoken under oath it really is difficult to modify them or retract them.

Holly: I agree completely. Well I think we’re just about out of time but I wanted to thank you so much for being my guest today on the podcast. My very first guest for my very first episode. I greatly appreciate it and any last words you’d like to say for the Texas family lawyers out there?

Marilea: Well I think that the family lawyers out there just need to keep on doing what they’re doing because from what I’ve seen dealing with family lawyers across the state of Texas they’re doing a good job. They are handling themselves well. They’re representing their clients well. And I think that the folks of Texas have good representation in our family lawyers. What I used to tell young lawyers when I’d be asked to speak to women’s groups, what I’d tell the young women lawyers is you need to do three things in addition to everything you do to get prepared for practice. You need to find comfortable shoes because you’re going to be on your feet a lot. So invest in good shoes that you can stand around and walk around in for extended periods of time. 

Buy clothes that fit so that you’re not tugging on them or pulling on them or they’re not too short or they’re not too tight. Buy clothes that fit in which you feel comfortable, and find a good shade of lipstick because nothing is going to perk you up like seeing a new tube of lipstick. Some of that bleeds over to young male lawyers too young man should have comfortable shoes and a good suit that fits well, because when you are comfortable in your clothing and your clothing looks good on you, you’re going to project more confidence. And when you project more confidence, you’re going to be able to focus not just on your presentation, but also on the needs of your client.

Holly: Thank you so much for being here today and that’ll wrap up our episode.

Voiceover: The Texas Family Law insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.

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If you have been involved in a family law dispute, you may have heard of joint managing conservatorship. You may be wondering what exactly joint managing conservatorship is and what it means for you in your family law case.  Conservatorship relates to rights, and joint managing conservatorship is presumed to be in the best interest of the child. This is a rebuttable presumption, meaning  a court can find that joint managing conservatorship is not in the best interest of the child. For example, if one parent has a history of domestic violence in the past two years, the court cannot name that parent as a joint managing conservator.  A parent might be able to overcome the presumption by showing the other parent has a history of substance abuse or has been absent from the child’s life.  In those situations, the court may find it in the child’s best interest to name one parent as the managing conservator and the other parent a a possessory conservator.  A managing conservator has far greater rights related to the child than a possessory conservator.

Parents often confuse conservatorship with possession. It is important to understand that joint managing conservatorship does not mean the parents spend equal time with the child. Rather, it refers to the rights and decision-making ability both parents have regarding the child. This includes legal, educational, medical, and psychological decisions. Joint managing conservatorship does not mean the parents have equal rights.  The rights can be allocated in a number of different ways.  Rights can be truly joint (requiring joint agreement), they can be independent (allowing each parent to act independently, possibly with prior consultation or notice required), or they can be exclusive (where one parent has that right but the other does not).

When parents are named joint managing conservators, it is common for one parent to be given the exclusive right to determine the primary residence of the child (usually within a certain geographic area.) This parent is referred to as the “primary parent” or “custodial parent,” and that parent usually receives child support payments.  The “primary” designation can carry a lot of legal significance beyond just the current custody order, and it is important to understand the implications before agreeing to give the other parent the primary designation in an order.  If neither parent is given the exclusive right to designate the primary residence (which is common with 50/50 possession schedules), the residence of the child with both parents is restricted to a certain geographic area.

 

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Following a divorce or child custody case in Texas, you may be struggling with the concept that you’re no longer able to see your child every day or whenever you desire. While this is certainly an adjustment, an added complication to this situation can occur when the other parent is not following the possession order. It is extremely frustrating when a parent expects to see his or her child, only to be disappointed at the time of the exchange. While co-parenting and reaching amicable agreements are encouraged, this may not be an option for some parent. So, what are your options if the possession order isn’t being followed?

Modification

If your possession schedule has become unworkable or is consistently disregarded by the other parent, modifying the possession order could be an appropriate option for you. If a parent is consistently failing to exercise possession at a specified time, or consistently keeps the child beyond their possession, modifying the schedule may offer long term relief for you. While a modification will not hold a parent responsible for disobeying the possession order, it will give you an opportunity to create a new possession schedule that works better for the child and the parents. A modification is also appropriate if the parents previously agreed to follow a different schedule but are no longer able to cooperate and agree. If this happens, asking the court to modify the possession order so it reflects what the parties consistently followed previously may be in the child’s best interest.

Enforcement

If the parent disregards the court’s possession order, or interferes with your ability to exercise your court ordered possession, seeking an enforcement is also an option. An enforcement asks the court to hold one party in contempt for disobeying the court’s order. To have a successful enforcement, you must have a clear and concise order and be able to articulate how the other party failed to comply with the order (i.e.: didn’t appear at the scheduled exchange or picked up the child from school so you could not exercise your possession.) If the court finds the other parent is in contempt, the court has multiple forms of relief to offer the other parent. The court can order additional possession time, order the payment of court costs and attorney’s fees, and even order confinement for a parent that continuously fails to comply. While seeking that the parent of your child be held in contempt seems very harsh, it may be the appropriate remedy if other options and attempts to co-parent have failed.

Writ of Habeas Corpus and Writ of Attachment

If the other parent is keeping your child from you for a continuous period of time beyond their ordered possession, seeking a writ of habeas corpus is the best way to have the child returned to you. If you’re seeking a writ of habeas, you must do so during your ordered possession time. While these hearings are typically expedited, they are not immediate. If a parent is keeping the child in excess of the court ordered possession, but returns the child within a relatively short period of time, an enforcement is the better option for you. The writ of habeas orders the parent to bring the child to court so that the court can determine who has the right of possession to the child. If you fear your child is in danger, you and your attorney may also want to seek a writ of attachment. A writ of attachment orders the parent to surrender the child to law enforcement so that the child may be returned you, instead of having the parent appear at a hearing with the child at a date and time in the future.

If your possession order is not being followed, you have rights and options available for relief. To determine what relief is most appropriate for your situation, you should consult with an attorney. The attorneys at The Draper Law Firm, P.C. are here to help you navigate through this difficult time and to fight for your parental rights.

-Blog post by Shmyla Alam

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Texas is a community property state, meaning all property acquired during the marriage by either spouse is presumed to be part of the community and, therefore, subject to division by the court in a divorce.  But what about debts, such as student loans?  In Texas alone, almost 3.4 million people have unpaid student loans that total more than $111 billion.  Understandably, a lot of people fear becoming responsible for their ex-spouse’s student loans post-divorce.

If you or your spouse obtained a student loan before the marriage, the student loan is considered a debt of that person’s separate estate, and the person whose name is on the loan will be 100% responsible.

If you or your spouse obtained a student loan during the marriage and used the money for education-related costs, the person whose name is on the loan will be 100% responsible.

However, if you or your spouse obtained a student loan during the marriage, and evidence shows the loans paid for living expenses that benefited both parties, the debt could be considered part of the community estate.  In this case, it will become one of many factors that are taken into account in dividing the entire community estate.

What about reimbursements?  Many people want reimbursement for the payments made on one spouse’s student loans during the marriage.  Texas law clearly prohibits reimbursement claims for payment of student loans owed by one spouse.  Much like buying groceries or paying for gas, these payments cannot be reimbursed.

Refinance student loans are another issue that arises during a divorce.  If you or your spouse co-signed student debt, including during a refinance, the co-signer becomes responsible for that debt.  In a situation where both parties’ names are on the student loan, the loan will be considered part of the community estate.

If you are going through a divorce and you have student loans, you should also speak with a financial planner because your options for repaying student loans may change post-divorce.  It is also important to have an attorney knowledgeable about property and debt issues.  The attorneys at The Draper Law Firm are ready to help you be proactive in navigating these issues.

Blog post by Samantha Mori

 

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In Texas, an adult who is the stepparent of a child may file for adoption. This post will answer some common questions that arise when a person is considering initiating a stepparent adoption.

 Who Can File and Where?

In Texas, an adult who is the stepparent of a child may file for adoption. When filing for stepparent adoption, you must include your spouse in the petition. The petition for adoption must be filed in the county where the child is residing or where the petitioners reside. (The parties who file the petition and are requesting the adoption are referred to as the petitioners.)

How Do I Start a Stepparent Adoption?

There are two types of stepparent adoptions, and it is highly recommended that you hire an attorney to help you navigate the process in either case. The type of stepparent adoption will have a large impact on the process you will need to go through to adopt your stepchild. These two types are as follows:

  1. The child’s other parent is alive and there is no court order terminating the parental rights of that parent to the child.  In this instance, you will need to file an Original Petition to Terminate Parent-Child Relationship and for Adoption. Depending on whether or not the biological parent is willing to voluntarily relinquish parental rights, these types of cases can be simple or much more difficult.
  2. The child’s other parent is no longer living or there is a court order terminating the parent’s parental rights to that child.  In this case, you will only need to file an Original Petition for Adoption.  These cases are generally quick and easy because you do not have to deal with the termination component.

It is vital that you file the proper documents in order to have your stepparent adoption approved by the court. As you can see, the other parent must either be no longer living or must have his/her parental rights terminated before you can proceed with adopting the child.

What Other Steps are Involved?

In order to complete a stepparent adoption, the stepparent must complete a background check.  That process is cheap and easy.  You simply make an appointment at one of the approved locations, have your electronic fingerprints taken for the background check, and have the results sent to your attorney.  The petitioners must also complete an adoption home study with someone who is qualified to conduct home studies.  The evaluator will file a report with the court indicating whether or not he recommends approving the adoption.

Will We Need to Appear in Court?

Yes. Both petitioners must appear in court (whether personally or by zoom, if required due to COVID-19 or if allowed by the court). If the child that is to be adopted is 12 years of age or older, the child must also attend the adoption hearing.  (Usually, because adoptions are such a joyous occasion, the child attends no matter the age.)  There is an exception if you are able to show it would be unduly difficult for one of the joint petitioners to attend the hearing. In that case, the court may waive the requirement for both petitioners to be present.  Additionally, the court may also waive the requirement for the child to attend, if waiving the requirement would be in the best interest of the child.

Does My Stepchild Have to Consent to the Adoption?

If the child who is to be adopted is 12 years of age or older, the child must consent to the adoption. The child’s consent can be given in court at the adoption hearing. If the child is not attending the adoption hearing, the child can provide consent in writing.

Must My Stepchild Live with Me Before I Adopt?

Yes. The law provides that a child must live with the adopting petitioner for at least six (6) months before the court may grant an adoption. This requirement can be waived if the petitioners show that the requirement is not in the best interest of the child.

Navigating a stepparent adoption can be a bit confusing and overwhelming, and there are a number of hiccups that may arise during the process. To help ensure your stepparent adoption goes as smoothly as possible, contact a family law attorney to assist you with the process. The attorneys at The Draper Law Firm are ready to assist you in the adoption process.

Blog post by Sarah Marrone

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Judges carefully consider the evidence and arguments presented at a trial before making a final decision, but this doesn’t mean that a judge’s decision is always accurate. For this reason, you still have options you can pursue in order to urge the judge to make a different decision in your case. There are different types of relief available if you believe the Court has made an erroneous decision. Below, we discuss your options for relief, and when each type of relief is most appropriate in your case.

Motion for New Trial

If you’re generally dissatisfied with the Court’s decision, or for one reason or another, the opposing party obtained a default judgement against you, a motion for new trial is likely your best option for relief. A motion for new trial must be filed within 30 days from when the Judge has signed the order or judgment, and this time cannot be extended. Because time is of the essence, it is important to discuss this option with an attorney as soon as possible.

A motion for new trial asks the court to give you a second opportunity to present your evidence and legal arguments so that the outcome will be more equitable. This is done by filing a motion that points out the legal errors of the judge’s ruling. If the motion is granted, you will be given an opportunity to present testimony and evidence at a new trial before the judge makes a new ruling. However, there is no guarantee that a new trial will result in a different decision from the court.

A motion for new trial is also a useful tool in extending deadlines for appeal, so even if the likelihood of a judge granting the motion is low, there still might be an important reason for filing.

Motion to Reconsider

If you have qualms with a specific ruling the court has made, or you believe the judge should have made a different decision based on the evidence and arguments that were previously presented at trial, a motion to reconsider is the most appropriate form of relief. Like a motion for new trial, a motion to reconsider specifically states the errors of the judge’s decision and provides legal arguments and support for why the court’s decision is erroneous. This motion does not ask the court to give you a second or new trial, but rather, a motion to reconsider asks the court to reconsider its ruling based on the evidence and record that already exists from the trial. This relief is most appropriate when you believe the court’s decision should be different based on the evidence and arguments that were presented at the final hearing. You’re not seeking an opportunity to present new evidence. Instead, you will use the record from the trial to illustrate why the Court should have come to a different decision based on the applicable law.

Appeal

If neither a motion for new trial nor motion to reconsider are successful, the only way to overturn the trial court’s ruling is through an appeal.  Appeals are an extremely slow process and can take a year or more before a decision is made.  Depending on the circumstances, an appeal might be appropriate in your case, or you may be better off waiting and filing a modification down the road (if the disputed issues relate to custody or child support).

Blog post by Shmyla Alam

 

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