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

0

Today the Texas Supreme Court issued its opinion in the landmark child custody case In re C.J.C.  Holly Draper served as lead counsel for the father, with Brad LaMorgese of Orsinger, Nelson, Downing and Anderson serving as co-counsel.  The case began back in 2018 when the child’s mother was tragically killed in a car accident.  The child was three at the time.  Both the maternal grandparents and the mother’s fiance sued for joint custody with the father.  The Court of Appeals ruled the grandparents did not have a right to sue for custody because they could not prove the father was unfit, and the grandparents were dismissed from the suit.  Texas law did not include a similar requirement that the fiance prove the father was unfit, so he was allowed to remain in the case.  A Denton County judge then gave the fiance rights and possession time with the little girl over the father’s objections.  We sought relief from the Texas Supreme Court, arguing that the trial judge violated the fit father’s constitutional rights when she gave rights and possession to a non-parent.

The case has garnered national attention, with nine different organizations filing amicus briefs into the case in support of our position.  The State of Texas and the Texas Public Policy Foundation participated with Holly Draper in oral arguments in support of the father.  Oral arguments were held via zoom on April 22 after COVID-19 delayed the original argument date.

The Court’s ruling today is a huge victory for parents in Texas.  Eight justices joined the majority opinion, with Justice Lehrmann issuing a concurring opinion.  The majority opinion found this case to be very similar to the landmark United States Supreme Case of Troxel v. Granville and rejected the opposing party’s position that the fit parent presumption should not apply because this case involved a modification.  The Court held that “we read any best-interest determination in which the court weighs a fit parent’s rights against a claim to conservatorship or access by a nonparent to include a presumption that a fit parent acts in his or her child’s best interests.”  The Court also clearly found the father to be fit in this case.  You can read the entire opinion here.

1

Today we are discussing some basic “Dos” and “Don’ts” to help you with some legal issues that may arise during and as a result of the COVID-19 pandemic. Check out the links for more information and resources.

DOs:

  • DO plan for your future with a will, living, will, statutory durable power of attorney, and medical power of attorney.
    • Every adult should have these four documents to ensure that (1) your assets pass according to your wishes; (2) you choose the end-of-life medical treatment that you want; and (3) you decide who will make medical and financial decisions for you in the event you are unable to make them for yourself.
    • Many attorneys, including the attorneys at The Draper Law Firm, are working hard to continue to provide these services to clients throughout the state. Due to the coronavirus, many attorneys are not providing in-person execution of these packages, but there are options to have these executed.  We are actively monitoring possible changes in the law that would allow for virtual signings.
  • DO continue paying your child support obligation.
  • DO follow your court ordered possession and access schedule.
  • DO co-parent to do what is in the best interest of your child.
    • Nothing about the current circumstances is normal. We encourage you to communicate and work with your co-parent to find creative and agreeable solutions to problems that may arise during this time.
  • DO reach out to resources that can help if you are struggling.

DON’Ts

  • DON’T ignore shelter-in-place orders.
    • Most counties in the state have issued shelter-in-place or other orders restricting movement. Only essential businesses remain open.  If you are required to go out, you should follow the CDC recommendations to protect yourself.
    • Remember, exchange of children according to a possession and access schedule is considered essential, but please be smart about this and do what is needed to keep your children and community safe.
    • Collin County Order, Dallas County Order, Denton County Order
  • DON’T participate in unnecessary travel.
    • Much like ignoring the shelter-in-place orders, traveling unnecessarily exposes you, your children, and others that you interact with to the virus.
  • DON’T assume the courts are closed.
    • If you have legal concerns, remember that attorneys are still operating to meet the needs of their clients. Courts are holding virtual hearings for most matters and the legal community is working together to find creative solutions to issues that may arise.
  • DON’T assume you are entitled to 100% percent of a stimulus check.
    • The government recently passed legislation that will entitle many adults to stimulus checks for themselves and their dependents.  If you are married, this money is community property and is subject to division in a divorce.  If you have questions or concerns about what effect your recent or pending divorce will have on a stimulus check, you should reach out to your attorney.
    • While back-owed taxes and defaulted student loan payments will not prevent payment, a stimulus check can be seized for past-due child support.
  • DON’T be afraid to reach out to your attorney.
    • Your attorney is there to answer case specific questions that may arise as a result of COVID-19.  Please keep in mind that this is uncharted territory for all of us, and sometimes the only correct answer is that we don’t know.

Blog post by Samantha Mori.

0

The outbreak of COVID-19 has had a significant impact on most people’s day-to-day lives.  Businesses shut down, schools closed, and people are uncertain in many areas of their lives.  Many counties (including Collin, Dallas, Denton, and Tarrant) have issued “shelter-in-place” or “stay-at-home” orders that restrict leaving home to essential activities only.  School closures and various (sometimes conflicting) shelter-in-place orders have left parents concerned about how this will affect possession and access schedules.

The Texas Supreme Court recently issued guidance on this topic.  On March 24, 2020, the Court issued its Seventh Emergency Order Regarding the Covid-19 State of Disaster.  The Court ordered “for purposes of determining a person’s right to possession of and access to a child under a court-ordered possession schedule, the existing trial court order shall control in all instances.  Possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement issued by a government entity that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.”

What does this mean for parents? 

The Supreme Court has ordered that parents must continue to follow the possession and access schedule as ordered by their court.  This means that possession and access to a child are not affected by any shelter-in-place that your city or county has issued.  In fact, many shelter-in-place orders explicitly state that traveling to exchange the children is not a violation of the orders.

What if you believe your child is at risk by going to the other parent?

The Texas Supreme Court has thus far not issued exceptions that would permit a parent to withhold a child on the basis that the child is at risk of exposure to coronavirus.  We strongly recommend working with your co-parent to do what is in the best interest of your child under the circumstances.  Absent an agreement between the parents, the court ordered possession and access schedule is still in effect.  Although we expect courts to be lenient when a parent is reasonable in taking certain actions to keep a child safe, a party who does not follow the court-ordered schedule could be subject to court action, such as contempt of court.  If you have concerns about this issue, you should reach out to a family law attorney familiar with your court, as this situation will be case and fact specific.

What if schools stay closed?

Texas courts have given a great deal of guidance about how school closures impact child custody schedules, which are usually based on school schedules.  After several counties put out orders related to school closures, the Texas Supreme Court did the same.  In short, parents need to follow the originally published school calendar for possession and access unless they agree otherwise.  You can find the full text of the Texas Supreme Court’s order on possession during school closures here.

But aren’t the courts shut down?

The district courts in Texas are operating differently due to the COVID-19 pandemic, but they are still operating.  Many hearings are now conducted virtually via zoom.  Only hearings on essential matters can happen in person, but even those hearings can be conducted virtually by agreement.  Clerks are still processing filings and the court systems are still functioning and moving cases forward.  Many attorneys (including those in our firm) are working virtually and continuing to file cases and move cases forward on behalf of family law clients.

This is a constantly changing situation, and new orders have come out regularly from various state and local courts over the past few weeks.  For those in Collin County, Judge Emily Miskel of the 470th Judicial District Court is trying to keep up-to-date emergency orders posted here.  The Collin County District Courts Facebook page regularly posts updates with helpful information as well.

(Blog post by Samantha Mori and Holly Draper)

0

The Draper Law Firm has been largely virtual since 2008.  With many lawyers forced to go virtual due to the coronavirus situation, here a few helpful resources for making the transition:

Phone System – Having a VoIP based phone system is extremely helpful when you are virtual.  It allows people to use their office number from anywhere via a desktop or mobile app without ever having to give out a personal cell phone number.  Our firm uses Ring Central.  Grasshopper is another example, but a search for “VoIP for business” will give you a lot of good options.

Answering Services – Having a backup answering service can be very helpful when everyone is working from home, especially since many people are now also managing their children’s schooling from home at the same time.  Our firm uses Lex Reception, but other options include Ruby Receptionist, Answering Legal and Smith.AI.  During business hours, our phone system will ring to our legal assistant first, but if she is unable to answer for whatever reason, it will switch over to the answering service.

Video Conferencing – Don’t you wish you had bought stock in Zoom a month ago?  Video conferencing is extremely important during a time when we cannot have much face-to-face interaction.  Ring Central includes a video meeting component powered by Zoom.  Zoom offers a free option, but it limits the length of meeting time.  GoToMeeting, Skype and FaceTime are other options.  FaceTime requires each person have an apple device, so I do not think that is the best option for office use.

Cloud-Based Storage –  This is critical to operating virtually, as it allows everyone in your office to access and work on the same documents without e-mailing things back and forth.  We use DropBox for business, which is secure and HIPAA compliant.  Other options include ShareFile.com, Egnyte.com, Box.com, Clinked.com, and Google Drive.  Texas Ethics Opinion 680 provides that a lawyer may use a cloud-based electronic data storage system to store client confidential information, but lawyers must take reasonable precautions related to data breaches, unauthorized access, and the disclosure of confidential information.

E-Signing Software-  Use software that allows people to sign documents electronically  such as Adobe Acrobat Pro or DocuSign.  We send out forms through Clio Grow, which allows clients to fill out questionnaires and sign fee agreements electronically.

Practice Management Programs – Our firm uses Clio Manage for practice management.  It allows for time keeping, billing, calendars, reporting, task management, and has greatly streamlined the case management process for our firm.  Other examples of practice management programs or task management programs are MyCase, Practice Panther, and RocketMatter, Monday.com, Dubsado, Padio, Trello, Asana, and Smokeball.

Office Essentials – Every person in the firm should have their own laptop and printer / scanner / copier.  When you are largely paperless, you don’t need the huge copier systems that many firms have at the office.  An at-home all-in-one printer for less than $200 will be perfectly sufficient.  It is important to either have a good shredder or have a lockable box for storing to-be-shredded documents.  Once it is full, have a shredding company come shred it.

If you have other resources you think would be helpful, feel free to share them with us using the Contact form and we will update accordingly!

 

0

Did you know that under the current state of the law in Texas, it is easier for a non-relative who had minimal involvement with a child but lived under the same roof to get in the door on a custody suit than it is for a grandparent or other family member?  Unfortunately, once someone gets in the door and has “standing” to sue for custody, the Texas Family Code does not provide any statutory protections for fit parents beyond a presumption in original suits that a parent should be appointed as the managing conservator over a non-parent.

The Texas Family Code might not protect fit parents, but the United States Constitution does.  The United States Supreme Court held in the landmark case of Troxel v. Granville, 530 U.S. 57 (2000), that the due process clause of the fourteenth amendment protects the rights of a fit parent to parent as he or she sees fit, without government interference.  The U.S. Supreme Court specifically found that “[t]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.”

The Draper Law Firm currently represents the father (“Relator”) in a mandamus proceeding currently pending before the Texas Supreme Court (In re C.J.C., Texas Supreme Court Case No. 19-0694).  We are arguing that the trial court judge abused her discretion and violated the father’s constitutional rights when she awarded rights and possession to a non-parent (the deceased mother’s fiance) over the fit father’s objections.

The case has garnered a lot of attention both within Texas and nationally, as six amicus curiae have filed briefs in support of our position.  Five non-profit organizations – the Texas Public Policy Foundation, the Texas Home School Coalition, the Parental Rights Foundation, the Alliance Defending Freedom, and A Voice for Choice Advocacy – have filed amicus briefs arguing for the protection of parental rights and asking the Texas Supreme Court to grant our petition.  Notably, the Texas Attorney General and the Texas Solicitor General filed an amicus brief on behalf of the State of Texas in support of our position.  This kind of amicus support in a family law case is exceedingly rare, and it underscores the importance of the issues involved in this case.

The Texas Supreme Court has set the case for oral argument on March 24, 2020 at 9:00 a.m.  Holly Draper will be arguing on behalf of the father, seeking to have the Texas Supreme Court render an opinion that would protect the rights of all fit parents in Texas.  Both the State of Texas and the Texas Public Policy Foundation have filed motions requesting to participate in oral argument.  If you are interested in learning more about the case, all of the briefs and filings can be found here.  The Texas Supreme Court live streams all oral arguments.  The site for viewing live oral arguments or searching for past oral arguments can be found here.

 

1

In order to file a child custody suit in Texas, a party must have “standing.”  Standing is a jurisdictional requirement.  If someone files suit without standing, the case should be dismissed.  If a court enters an order when someone does not have standing, that order is void.  Not just anyone can file a child custody suit.  Under the Texas Family Code, the following people have standing to bring a child custody suit:

  1. A parent whose parental rights have not been terminated;
  2. A child, through a representative authorized by the court;
  3. A person with court-ordered visitation rights;
  4. A guardian of the child’s person or estate;
  5. A governmental entity (such as the Office of the Attorney General);
  6.  The Texas Department of Family and Protective Services (CPS);
  7. A licensed child-placing agency;
  8. A man who alleges he is the biological father of the child;
  9. A person (other than a foster parent) who has had actual care, control and possession of the child for at least six months;
  10. A person designated as the managing conservator in an affidavit of relinquishment of parental rights or who has been given consent to adopt the child;
  11. A person who resided with the child and a recently deceased parent for at least six months ending not more than 90 days before filing suit (commonly referred to as the “step-parent statute,” although the statue is not limited to step-parents);
  12. A foster parent who has had the child in his or her home for at least 12 months ending not more than 90 days before filing suit;
  13. A person who is related to the child by blood or adoption within the third degree of consanguinity (ie: brothers, sisters, nieces, nephews, aunts, uncles, grandparents and great grandparents) if the child’s parents are deceased, if the child’s present circumstances are a danger to the child’s physical or emotional health, or if the child’s parents consent; or
  14. A prospective adoptive parent, if the child’s parent or a pregnant woman has conferred standing to that person.

If a person does not fall into one of the above categories, that person cannot file a child custody suit.  Standing can be a complicated issue, and whether or not someone has standing under one of the above provisions is not always as clear cut as you might think.  If you are wondering if you can legally file a child custody suit, an experienced family law attorney will be able to look at the specific circumstances of your case and help you make that determination.

stk204273rke

0

Soheyla Dixon is the newest attorney at The Draper Law Firm, and we thought you should get to know her a little bit!  We asked her a few questions and here are her responses:

1.What made you decide to go to law school?

Everyone deserves someone to fight for them. I wanted to go to law school to fight for what is right. My father grew up in another country, and my female relatives who live there don’t have the opportunity to earn advanced degrees or work in the legal profession. I felt it was my duty to my clients and my family to advocate for people who otherwise may not have a voice.

2. What do you enjoy most about family law?

I love how no case is the same as the last. Everyone’s family is different. Even if families are structured the same, the family dynamics are different. I enjoy getting to know my clients and what is important to them. The real joy is helping them navigate some of the toughest times in their lives.

3. How would you describe your philosophy as a family lawyer?

I prefer helping families come together and reach amicable resolutions in family law cases. After all, each family going through litigation will have to work together moving forward one way or another. When they make decisions together, they typically have more success in the long run.

4. Tell us a little about your family / pets

I am married to my high-school sweetheart. We have one daughter, Amira, who is 3 and a dog, Chloe.

5. What is the favorite place you have been to in the world and why?

Iran – my entire family (on my dad’s side) is there other than my dad.

6. What is your dream travel destination?

I would like to travel to Africa.

7. What are three little known facts about yourself?

I broke my ankle tripping off a water bottle.  I went to college on tennis and academic scholarships.  While in college, I met another girl with my same first AND last name – in MAGNOLIA ARKANSAS!

8. What are your hidden talents?

I can sing.

9. Favorite professional sports team(s)?

Dallas Cowboys (I know, I know)

10.  What sports do you enjoy playing?

Tennis

11. What do you enjoy doing for fun outside the office?

Reading, spending time with family, and anything outside.

12. What are your pet peeves?

Smacking gum and clicking pens

Soheyla Dixon

0

Many people have made peace that their marriage is ending before the divorce process ever begins. There are many reasons for this including disappointment, adultery, emotional abuse, domestic violence, a generally unhappy marriage or a host of other reasons. While everyone deserves a happy, love-filled marriage, unfortunately, every marriage is not like that.

The divorce process can take anywhere from 61 days to several years in Texas, depending on the parties and issues involved. It can be incredibly frustrating feeling like your life is frozen while you are going through a divorce, especially if you’ve known for some time that the marriage is over. Regardless, it is not a good idea to begin a new relationship before finalizing a divorce.

Remember, you are still married until the final decree of divorce is entered and signed by the Judge. Emotions are high when a divorce is pending. Both parties are usually very guarded and should be on their best behavior. Starting a new relationship can be a risky move while you are still technically married and is generally not a good idea. For one, an otherwise amicable divorce may become much more contested if your spouse finds out you’ve already moved on.

Dating during a divorce may impact the final determination of custody in your case as well, especially if you have allowed your new romantic interest to be around your children. If you are dating, that person will be around your children at some point. If that person has a criminal record or other issues in their background, the court may consider that when determining who should have primary custody of your children. The court will focus on the best interest of your children and may find that certain behaviors of one parent are simply not in the best interest of the children. The court will then order custody and possession accordingly.

If you begin a new relationship during divorce, your spouse may choose to file adultery grounds. This is even more likely if you began seeing that person before divorce was filed. Your spouse can feel that adds insult to injury or is a slap in the face. A finding of adultery in a Texas divorce means that it will be on record that the divorce was the adulterer’s fault instead of the tamer “no-fault” ground. If the court finds that you committed adultery, your spouse may receive more of the community property as a result.

While divorce is a difficult process to navigate, it is important to remember that patience is a virtue. Give your divorce the attention it needs and, once it has been finalized, you can get the attention you deserve. Treat yourself, spend quality time with your kids. When you truly feel ready, after the divorce is final, you may decide to date again.  If you are going to date during your divorce, keep the new person away from your children, keep all information about the new relationship to yourself, and keep everything about the new relationship off social media.

Blog post by Soheyla Dixon

Divorce

0

Texas is a community property state, and all property belonging to either spouse is presumed to be community property.  Property that either spouse had before the marriage, along with any property either spouse received as a gift or through inheritance, is the separate property of that spouse.  The burden is on the spouse claiming separate property to prove it.  Although there are a number of ways of proving separate property, below are a few issues that commonly arise.

The longer a couple has been married, the harder it can be to prove what one spouse had before the marriage.  Most people do not keep financial records when they get married thinking, “I’d better keep this statement so I can show how much was in my 401(k) at the time of marriage just in case we divorce in 20 years.”  Often people switch jobs and 401(k)s get rolled over, sometimes multiple times, which can make tracing back to the beginning of the marriage a challenge.  The spouse trying to prove separate property will need to show how much was in the account at the time of marriage and that it never went below that amount during the marriage.

Certain types of property are easier to trace than others.  For example, if one spouse owned a home before the marriage, it is easy to look at the property records and show that he or she purchased the house before marriage.  Be warned, though, that if you ever add your spouse to the deed, it will likely be presumed that you gifted your spouse half of the house.  This seems to happen regularly when a couple wants to refinance a separate property house.

When one spouse receives a gift or inheritance during the marriage, that spouse will also need to trace the money in order to confirm it as separate property.  If separate property is co-mingled with community property, this can become more difficult to do.

Example A:  In 2004, Husband receives a $10,000 inheritance.  Husband puts it into a bank account in his name alone and never puts other money in that account.  In 2014, money from the account is used as a down payment on a house for the couple.  In 2017, the couple divorces.  Husband should easily be able to trace the down payment back to his separate property account with a cancelled check or confirmation of a wire transfer, plus proof of where the funds in that account originally came from.  His chances of receiving his money back from the down payment are high.

Example B:  In 2004, Husband receives a $10,000 inheritance and puts it into a joint bank account. Over the years, the parties deposit their paychecks into the account and pay their bills and various other expenses out of the account.  In 2014, money from the account is used as a down payment on a house.  In 2017, the couple divorces.  Husband will have a much more difficult time proving that the down payment came from his separate property inheritance.  He would need to hire a forensic accountant to trace the funds in the account, which could cost just as much as the separate property at issue.

Establishing separate property can be a difficult task if the parties do not keep good records or if they co-mingle funds.

The Draper Law Firm, P.C.

0