What can a family law appellate lawyer do for my case?

appeal arrowYes, family law appellate lawyers handle appeals to the Texas court of appeals or the Texas Supreme Court. We read records, write briefs, and make oral arguments.  We research rules and analyze case opinions. But, adding an appellate lawyer to your trial team can be beneficial long before filing a notice of appeal.


Early in the case, the appellate lawyer can assist with complex pleading issues.  If jurisdiction is contested, the appellate lawyer can prepare and present the plea to the jurisdiction or special appearance and get the legal issues ready for mandamus (family law cases) or interlocutory appeal (civil cases). The appellate lawyer can draft special exceptions and craft special pleadings for complex claims or defenses.

Complex Legal Issues

An appellate lawyer can be a member of the family law trial team, much the same as an expert witness or jury consultant. As a second chair lawyer in the case, the appellate lawyer can take charge of complex legal issues so the trial lawyer can focus on presenting the factual issues.  For example, in a challenge to a premarital agreement, the appellate lawyer can handle the legal research and briefing on the basis for the challenge, coordinate the evidence needed to meet the elements of the claim, and draft the pleadings on the issue.

Dispositive Pre-trial Motions

Summary judgments, even if unsuccessful, can help prepare the trial lawyer to make a motion for directed verdict at trial or raise a legal sufficiency point on appeal. A no-evidence motion for summary judgment can be used strategically to either eliminate unmeritorious claims prior to trial, or at a minimum get an idea before trial of the evidence and legal theories the other side may rely upon to prove the claim. So, an appellate lawyer can be especially beneficial in preparing summary judgments prior to trial to eliminate (or defend against elimination of) some tenuous claims. In a jury trial case, the appellate lawyer can file Rule 248 motions seeking determination of the trial court’s rulings on matters of law.

Pretrial Appeals

When a party suffers a negative ruling on a pretrial matter, such as discovery, mandamus may be a viable alternative. Or, if the trial court appoints a receiver over the marital estate, interlocutory appeal will be required to avoid waiver of error. Interlocutory appeals have accelerated deadlines to watch out for. An appellate lawyer can be useful for seeking redress in the appellate courts of pretrial rulings either by mandamus or interlocutory appeal, as appropriate.


Having an appellate lawyer sit second chair at trial can ease the pressure on the trial lawyer from focusing on preservation of error issues to concentrating on presentation of the factual issues.  A motion can be made at the beginning of the trial to allow the appellate lawyer to handle all objections. (The worst scenario for a trial lawyer is to hear from an appellate judge that he or she waived error by failing to make the right or timely objections!) The appellate lawyer can draft and present motions for directed verdict, preserving error on the sufficiency of the evidence arguments for appeal. In a jury trial, the appellate lawyer can present and monitor issues pertaining to limine and jury charge. Recently, the Texas Supreme Court has moved away from broad form submission and toward granulated charge questions. Having an appellate lawyer handle the charge objections and requests for submission can ease the trial lawyer’s burden.


After trial is over, an appellate lawyer can be beneficial to ensure that requests for findings are timely filed, especially with the special deadlines for such findings in many family law cases. The appellate lawyer can handle sufficiency objections to the trial court’s ruling and proposed judgment, or objections to the jury’s verdict. Motions for new trial and other post-judgment motions are also an area of an appellate lawyer’s expertise. Preparing the issues for direct appeal after the entry of judgment, and preserving the deadlines, can be essential to presenting the case for appeal, and directly related to the appellate lawyer’s purpose.


Would living in Texas have been better for Mr. Hamm in his Oklahoma divorce?

Hamm divorce

The Harold Hamm divorce in Oklahoma is getting a lot of media attention right now. The divorce trial has started and the wife is making allegations that the husband’s company is rewriting history to downplay his role in the company’s success in order to increase the value of the marital estate subject to division. The trial has been closed to the media and interested onlookers and the lawyers have been placed under a gag order to prevent them from leaking interesting tidbits to the media, so we won’t know exactly what’s going on for a while.

Hamm divorce

Mr. Hamm founded Continental Resources in 1967, about 21 years before the marriage. He now owns 68% of the company’s shares and amassed a $19 billion fortune during the marriage. When Mr. Hamm divorced his previous wife, a year before marrying the current Mrs. Hamm, court filings estimated his net worth to be around $16 million.  Under Oklahoma law, the growth in the parties’ net worth deriving from their work efforts during the marriage is considered marital wealth, subject to equitable division under Oklahoma law. So, how much each spouse gets in the division of property depends on the value the judge places on Mr. Hamm’s work during the marriage.

The allegation is that the company has been secretly altering its website and other public information to make it appear that market factors had more to do with the company’s success during the Hamm marriage than Mr. Hamm’s direct efforts. Oklahoma law apparently will make a distinction between Mr. Hamm’s efforts that increased the value of the company, which would be attributable to marital property. On the other hand, if the increase in value of the company was based on market factors outside of Mr. Hamm’s efforts (“luck”), then the increased value would not be marital property. So, Mr. Hamm has incentive to downplay his role, while the wife benefits from extolling his virtues.

Reporters were able to obtain the company’s corporate website from internet cache and discover revisions to the website such as a change that backdated a very profitable decision to move the focus from natural gas to oil to before the date of the Hamm marriage. Another change added a date before the Hamm marriage of the company moving into a basin in North Dakota. The company apparently changed the company’s 2013 annual proxy which originally stated that Mr. Hamm grew the company through his leadership skills and business judgment. The document produced struck the language extolling Mr. Hamm’s contributions.

Texas Divorce Law

Texas divorce laws would approach the Hamm divorce very differently than Oklahoma divorce law. As a community property state, Texas would look at the moment when the asset was obtained by the spouse to determine if the asset is community property and divisible upon divorce, or separate property of the husband and not divisible. So, in the Hamm situation, if all of the shares of stock were purchased and owned prior to the marriage, Texas law would consider the stock husband’s separate property, not subject to division upon divorce. 

The next step in the analysis of the Hamm situation under Texas law would be to evaluate the characterization of the increased value of the stock.  Unlike Oklahoma law, Texas would treat the increase in value of the stock, regardless of the efforts of Mr. Hamm in causing the increase, as separate property, the same as the stock itself.

Under Texas law, Mrs. Hamm might have a claim for reimbursement to the community estate under the case of Jensen v. Jensen. This Jensen claim would seek reimbursement to the community estate for the time, toil, and talent expended by one spouse to benefit his separate estate without the community estate receiving a proper benefit. So in the Hamm situation, under Texas law, the question would be whether Mr. Hamm received an appropriate salary (which would be community property) for his efforts in working for the company that caused the increase in the stock value.  If he did receive an appropriate compensation, then the wife would not have a Jensen claim.  However, if he was under- compensated or received no compensation for his efforts on behalf of his separate property company, then the community could make a claim to the increase in value of the separate property stock.  The value of such claim would be limited by the reasonable compensation he should have received.

Needless to say, under Texas law, the Hamm divorce would look very differently than it does under Oklahoma law.


Hat tip:

Joshua Schneyer and Brian Grow, U.S. oil baron rewrites his company’s history; move could stave off record divorce payout

Joshua Schneyer, Billion-dollar debate in Oklahoma divorce: Was oilman just lucky?

No such thing as common law divorce in Texas

Once a party establishes the elements of a common law marriage, spouses are married until they are legally divorced under Texas law.  The recent case of McMaster v. Small, No. 14-13-00069-CV, 2014 WL 950471 (Tex. App.—Houston [14th Dist.], 2014, no. pet. h.) (03/11/2014) (mem. op.), illustrates this concept case, the wife petitioned for divorce, alleging common law marriage. 

Wife alleged that she and Husband married in December 1991 and ceased to live together as husband and wife in August 2004. She provided her own testimony, as well as the testimony of seven witness, that husband and wife "held out" to others that they were married starting in December of 1991.  The evidence further showed that, beginning in August of 2004, the parties denied that they were married, so husband argued that the evidence was not sufficient to show "holding out" as a required element of common law marriage.  

The Houston 14th Court pointed out that there is no such thing as a common-law divorce in Texas.  So, once evidence established that the husband and wife held out to others early on that they were married, the necessary elements of common-law marriage were established, making them legally married in the eyes of Texas law.  Common law marriage, like any other marriage, may be terminated only by death or a court decree. Therefore, even if the spouses denied the existence of a marriage after August 2004, those denials cannot undo the marriage.

This case illustrates the required level of proof to show common law marriage.  It is enough to show one point in time that meets the elements of common law marriage.  It is not necessary to show a continuing pattern of conduct throughout a time period of when the parties were together. 


Michelle O’Neil named to list of Top 50 Women Lawyers in Texas

super lawyer badgeMichelle May O’Neill, Shareholder at Godwin Lewis, P.C., has been chosen for inclusion in the Texas Super Lawyers® listing for the fourth consecutive year. In addition to her selection for the 2014 list, Attorney O’Neil was honored with three Super Lawyers® top lists: Top 100 Lawyers in Texas, Top 50 Women Lawyers in Texas, and Top 100 Lawyers in Dallas/Fort Worth. Only 5% of Texas Lawyers are honored to be named among the Super Lawyers®.

Super Lawyers® is a nationwide rating service of outstanding lawyers from over 70 practice areas who have achieved a high-degree of peer recognition and professional achievement. The rigorous selection process combines peer evaluations and nominations, with independent research.

Candidates are evaluated on 12 indicators of peer recognition and professional achievement, including special licenses, professional activity, pro bono work, scholarly lectures, and writings. The final published lists represent no more than 5% of attorneys in the state.

In addition to her Super Lawyers® selection in 2011, 2012, 2013, and 2014, Attorney O’Neil earned an AV Preeminent® Rating from Martindale-Hubbell®, the highest rating given to an attorney for ethical conduct and legal ability. Attorney O’Neil also holds the distinction of being is Board Certified in family law by the Texas Board of Legal Specialization and has achieved a 10.0 Superb rating from Avvo.

Attorney Michelle May O’Neil is a shareholder at Godwin Lewis, PC in Dallas, and her practice focuses on the areas of divorce and family law. Attorney O’Neil earned her bachelor’s degree from Baylor University Hankamar School of Business and her law degree from Baylor University School of Law.

As a respected author, Attorney O’Neil released Basics of Texas Divorce Law (November 2010), and All about Texas Law and Kids (September 2009). She has been featured in Who’s Who in America and Who’s Who in American Law in multiple editions. To schedule a consultation with Attorney O’Neil regarding a divorce or family law matter, please call (972) 852-8000, or visit her website online at http://www.oneilattorneys.com.

Rule 11 agreements are revocable before judgment is rendered

A point of confusion for many in the family law context is the viability of a rule 11 agreement to settle an issue or a whole case.

Rule 11 of the Texas Rules of Civil Procedure provides that an agreement between lawyers in a case is enforceable as long as the agreement is in writing and filed in the papers of the court or read into the record of the court.  However, rule 11 agreements are revocable at any time until judgment is rendered. A court may not enter an order upon a rule 11 agreement when one of the parties to the agreement has revoked his or her consent.

The recent case of  Woody v. Woody, __SW3d__, No. 14-12-00762-CV, 2014 WL 1512395 (Tex. App.—Houston [14th Dist.], 2014, no. pet. h.) (04/17/2014), illustrates this point.  In this case, the parties had very contentious litigation over child support.  In the end, they reached a rule 11 agreement read into the record, but before judgment could be rendered by the court, the father revoked his consent.  The trial court entered judgment anyway, which the Houston 14th Court found to be error.

Parties can enter into an enforceable Rule 11 agreement if it is made in open court and entered of record. If a party revokes its consent to a Rule 11 agreement at any time before the trial court renders judgment in the case, the agreement can no longer simply be “approved” by the court; instead, the enforcement mechanism is through a separate breach of contract action. Here, although the parties entered into an agreement in open court, Father subsequently requested a reduction in child support. Therefore, Father clearly withdrew his consent to that agreement before the trial court rendered judgment. Accordingly, the trial court erred by incorporating the child support agreement into the final judgment.


UPDATE: Judge Posner says it all on same-sex marriage equality (Chicago’s 7th Circuit Federal Court of Appeals)

On Thursday last week (September 4, 2014), the infamous Judge Richard Posner, writing for the 7th Circuit Federal Court of Appeals, known for being one of the leading "legal thinkers" in America and the number one most cited legal scholar, issued a witty, biting, deeply moral masterpiece striking down Indiana’s and Wisconsin’s gay marriage bans. This is an opinion that the Supreme Court of the United States, and maybe even some other, more conservative jurists will listen to! Maybe the Texas Supreme Court is reading this opinion right now and thinking about deciding the Texas state case In re J.B. out of the Dallas court on the validity of same-sex marriages and the right of Texas to grant a same-sex divorce.

The opinion was released only 9-days after the arguments in the case.  That has to be some sort of record in the appellate world!


You remember this Posner guy… He’s been a commentator on the Lewinsky scandal, the 2000 presidential election controversy, the 2003 invasion of Iraq, and others. Although branded largely as a conservative, he’s written in favor of the protection of abortion rights and in favor of the decriminalization of marijuana. Read more about him on Posner’s Wikipedia page


So, back to the same-sex marriage debate…. Posner has some really good zingers in his opinion:


·       "Our pair of cases is rich in detail but ultimately straight-forward to decide.  The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rational that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended – is so full of holes that it cannot be taken seriously." (page 7)


·       "We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a ‘reasonable basis’ for forbidding same-sex marriage." (page 2)


·       "The sole reason for Indiana’s marriage law, the state’s argument continues, is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility…. Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births. As for the considerable benefits that marriage confers on the married couple, these in the state’s view are a part of the regulatory regime: the carrot supplementing the stick.  Marital benefits for homosexual couples would not serve the regulatory purpose of marital benefits for heterosexual couples because homosexual couples don’t produce babies." (page 15)


·       Both states argued that their electorates should have the right to continue policies based on centuries of tradition. Posner responds, "Tradition per se has no positive or negative significance. There are good traditions [and] bad traditions… bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination – regardless of the age of tradition…. But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause." (page 28-29)


·       To the states’ argument that the issue should be left to democratic majorities in each state, Posner responded, "Minorities trampled on by the democratic process have recourse to the courts; the recourse is call constitutional law." (page 37)


·       "At oral argument the state‘s lawyer was asked whether ‘Indiana’s law is about successfully raising children,’ and since ‘you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?’ The lawyer answered that ‘the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.’ In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure." (page 19)


·       "No evidence is presented by the state to support this contention. It is true that an increasing number of heterosexuals support same-sex marriage; otherwise 11 states would not have changed their laws to permit such marriage (the other 8 states that allow same-sex marriage do so as a result of judicial decisions invalidating the states’ bans). No inference of manipulation of the democratic process by homosexuals can be drawn, however, any more than it could be inferred from the enactment of civil rights laws that African-Americans ‘are politically powerful out of proportion to their numbers.’ It is to the credit of American voters that they do not support only laws that are in their palpable self-interest. They support laws punishing cruelty to animals, even though not a single animal has a vote." (page 37-38)


·       "And there is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice. Wisely, neither Indiana nor Wisconsin argue otherwise." (page 9)


·       "The harm to homosexuals (and, we’ll emphasize, to their adopted children) of being denied the right to marry is considerable.  Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status." (page 10)


·       "Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential responds, notably in the care of their adopted children, like other married couples." (page 11)


Of course, the states will appeal this to the United States Supreme Court. Out of 21 federal courts that have ruled on bans on same-sex marriage, 20 have held the laws unconstitutional and one in Louisiana has upheld the state’s restrictive law based on state’s rights to decide the issue for themselves. But, this opinion is priceless! And may show in due time to be the loud voice of reason.


Read the entire 40 page opinion in Baskin v. Bogan here.


Read New York Times article Gay-Marriage Bans Fall in Wisconsin and Indiana


Read Mark Joseph Stern of Slate’s Judge Posner’s Gay Marriage Opinion is a Witty, Deeply Moral Masterpiece


Read Ben Dreyfuss of MotherJones’ This Judge Just Said Everything You Want to Say to the Anti-Gay Marriage Crowd, But Better


UDPATE: Indiana and Wisconsin reacted very quickly, filing their petitions in the United States Supreme Court on Tuesday, only five days after the Court of Appeals’ opinion was issued.   With these two new cases, there are seven cases pending in the U.S. Supreme Court on this topic.  


These seven pending cases raise both of the constitutional questions that have arisen in lower courts in a wave of decisions over the past fifteen months:  do states have the authority to refuse to allow gay and lesbian couples to marry, and do they have the authority to refuse to recognize same-sex marriages performed for their residents in other states. The Court has the option of taking on either or both issues, and it also has the option of putting off any consideration for the time being, despite the heavy pressure from virtually everyone involved in the cases, who contend that the Court should not wait any longer to decide. None of the cases is a mandatory appeal. It would be highly unusual, however, for the Court to pass up all of the cases, when everyone is championing review now.


If the Court opts to take on the controversy anytime up to mid-January, a final ruling could be expected before the new Term is completed late next June.


These cases have all arisen very quickly since the United States v. Windsor decision last year.  In that ruling, the Justices struck down a key part of the federal Defense of Marriage Act that limited federal marital benefits only to married opposite-sex couples.  Although the Court said it was not then ruling on state authority to deny marriage rights or recognition of existing marriages of same-sex couples, most of the lower court rulings since then have used reasoning from the Windsor decision in striking down state prohibitions.

Decisions are now pending in the Sixth and Ninth Circuits, and the Fifth Circuit also has a case pending from Texas, but no hearing date has been scheduled.


Hat tip to SCOTUS blog on this info.


Social Security as a Division Factor in Divorce

With the aging of the Baby Boomer generation and the increase in "gray divorces" that we are seeing in the Dallas, Texas area, I am more frequently being asked about the effect of social security benefits in divorces.

Social security benefits are not a divisible asset upon divorce. But, Jimmy Verner reports in the Section Report newsletter of the State Bar of Texas Family Law Section on two recent cases from other states where a disparity in social security benefits was considered in the overall division of the assets of the marital estate.

In Vermont, a court of appeals held that social security benefits were too speculative to form the basis of an offset in the property division because the benefits are subject to the will of Congress. In Manning v. Schultz, 2014 VT 22, ___ A.3d ___, 2014 WL 840815 (2014), the Vermont Supreme Court reversed a trial court that credited a husband’s share of the marital estate with $88,158, and allowed an equivalent offset to the wife’s estate, the $88,158 representing the difference between the present value of the parties’ respective projected Social Security benefits, because Social Security benefits can be revised “at congressional will” and therefore cannot be valued “without excessive speculation.” 

On the other hand, an Oregon decision upheld a ruling where the husband’s share of the estate was reduced by an amount equivalent to the disparity in social security benefits. In In re Marriage of Herald & Steadman, 355 Or. 104, 322 P.3d 546 (2014), a divided Oregon Supreme Court affirmed a trial court’s decision to reduce a former husband’s share of a former wife’s pension by the amount of Social Security benefits the former wife would have received had her federal employment allowed her to contribute to Social Security in lieu of pension contributions, the trial court reasoning “that it would be unjust for husband to receive half of the value of wife’s CSRS pension at her retirement and, at the same time, enjoy his own full share of Social Security benefits.”

It will be interesting to see where Texas courts head with this issue as more people get divorced later in life. From a practical standpoint, if a question of disparity of social security benefits arises in a case, it may be worthwhile to bring on an expert who can offer opinions about social security benefits to the court to illustrate a disparity between the parties.

Bank accounts and brokerage accounts are not the same in a premarital agreement

The Houston 14th Court recently handed down a decision regarding the characterization of assets in a premarital agreement, distinguishing between a "bank" account and a "brokerage" account in determining the characterization of certain assets.  IMOMO McNelly, __SW3d__, No. 14-13-00281-CV,  (Tex. App.—Houston [14th Dist.], no pet. h.) (05/15/2014).

Prior to Husband and Wife’s marriage, Husband owned and operated a business. Husband and Wife executed a premarital agreement in July 2008. The premarital agreement provided that separate property funds and proceeds from the sale of separate property would remain separate property but also provided that those funds and proceeds “may be deposited into any bank account styled in their joint names” and that such monies “shall become and remain community property.” The parties married later that same month. In September 2008 Husband sold his interest in the business for $1.3 million and later deposited $100,000 of the sale proceeds into two joint bank accounts and the remaining $1.2 million two separate joint brokerage accounts. Wife filed for divorce in 2010. Following the trial, the trial court found that Husband’s owned andoperated his business prior to the marriage, making his interest in the business Husband’s separate property.However, the trial court concluded that Husband converted all $1.3 million in his separate property proceeds from the sale of his business into community property by depositing the proceeds into joint accounts and comingling the proceeds with community funds. Husband appealed, arguing that the trial court divested him of his separate property when it characterized the $1.2 million deposited into joint “brokerage” accounts as community property.

The Court held, under the plain language of the premarital agreement, the couple clearly intended that the fruits of the business, such as the earnings that might result from the sale of the business, should remain Husband’s separate property. Resolution of the issue therefore turned on the meaning of “bank” in the premarital agreement.

Dictionaries generally define “bank” as a financial establishment for the deposit, loan, exchange, or issue of money and for the transmission of funds. In contrast, “broker” is defined as an agent who acts as an intermediary or negotiator, especially between prospective buyers and sellers; a person employed to make bargains and contracts between other persons in matters of trade, commerce, or navigation. According to the Houston Court, these definitions illustrate that banks and brokers are distinguishable, particularly with respect to the scope of their respective services; banks tend to offer a broader spectrum of financial services than brokerage firms. Additionally,federal and state statutory definitions, including those under the U.S. Code Title 15 (Commerce and Trade), the Texas Finance Code, and the Texas Business and Commercial Code, illustrate that banks and brokerage firms generally fall under distinct statutory and regulatory regimes. Finally, federal case law suggests that mere overlap in the services provided by a nonbanking entity, such as a brokerage firm, with the services provided by a bank does not transform the nonbanking entity into a bank.

In this case, the premarital agreement stated that any separate-property funds deposited into joint “bank” accounts would become community property. The contested $1.2 million was deposited into joint “brokerage” accounts, not joint “bank” accounts. Therefore, that $1.2 million did not become community property. Accordingly, the trial court erred when, based on its erroneous interpretion premarital agreement, it characterized as community property the $1.2 million from the sale of Husband’s separate property business.

This is a significant opinion because most people do not distinguish between bank accounts and brokerage accounts as a practical matter.  Both types of accounts are for the purpose of holding money.  But, lawyers who are drafting a premarital agreement should be aware of the distinction between the two types of accounts and counsel clients in the application of the premarital agreement accordingly.

Can a psychological evaluation in a custody case determine who is lying?

Oftentimes, people going through a custody dispute want to have psychological evaluations to show the judge "who is lying" to the court about some issue or another.  Conversely, some people going through psychological evaluations in a custody case become concerned that the other person will "lie" to the evaluator through charm or outright deception and sway the results of the evaluation.

Dr. John Zervopolous, a noted consultant in the Dallas, Texas area on psychological issues in custody cases, discussed this concern in the June issue of the Section Report newsletter of the State Bar of Texas Family Law Section.  He points out that child custody litigants who undergo psychological evaluations approach court-ordered evaluations in characteristic ways: they are defensive, or self-protective; they gloss over, if not deny, problems; and they often cast their soon-to-be or ex-spouses in a negative light. "When parents view litigation as a high stakes, win-lose gamble, they conform their behaviors towards that end," Dr. Zervopolous notes. 

Sometimes what one parent thinks is a "lie" by the other parent is simply the other parent’s perspective of the "truth". In other words, each parent may see a situation very differently and have differing perspectives on what is true or untrue. But, he says, psychologists do not have fool-proof abilities to discern whether people are telling the truth or deceptively shading the truth or outright lying.

No psychological test—even the MMPI-2 and its validity scales—reliably detects lies. Instead, adequately designed validity scales incorporated into tests may broadly reflect the examinee’s “response style” or approach to test questions. Further, the evaluation’s context may affect the examinee’s test response style. For instance, examinees answer test questions as parents in child custody suits, as plaintiffs in sexual harassment lawsuits, or as criminal defendants. Depending on the context, examinees may try to look too well-adjusted, to exaggerate or make up problems, or to reflect accurately their emotional condition. Determining the examinee’s response style and its meaning are the first steps to accurate test interpretation.

Unfortunately, not all tests contain equally reliable or sensitive response style measures. The MMPI-2’s measures, encompassing several validity scales, are comparatively well-developed and provide useful response style information. Yet much of the research supporting these measures is inconclusive. Further, these measures by themselves may not always accurately reflect the examinee’s true approach to the test questions—for instance, a naïve approach to test questions may be mistaken for trying to look too well-adjusted, or a profile that appears to indicate an examinee’s attempts to feign psychological symptoms may actually reflect a “cry for help.”

Compared to the MMPI-2, the response style measures of the MCMI-III and the Personality Assessment Inventory (PAI) are less developed. And response style measures of other tests, composed only of transparent questions that attempt to catch examinees in obvious falsehoods—e.g. “Have you ever told a lie?”—are as useless as tests with no response style measures. Testing without adequate response style measures are vulnerable to evidentiary reliability problems.

Dr. Zervopolous suggests four lines of questions to begin cross-examining experts about test results that inform their opinions:

  1. Do the administered tests assess the examinee’s response style?
  2. ​If so, how accurately, according to the research, do the tests’ response style measures assess the examinee’s approach to the test questions?
  3. What does the examinee’s measured response style say about her approach to the testing?
  4. How does that approach, then, affect the expert’s test interpretation?

Reliable test interpretation cannot begin without first addressing the response style issue. Answers to these questions will help custody litigants better understand how the expert interpreted test results and how those results informed the expert opinion.