As New Mexicans, it seems like cultural acceptance is something that we take for granted because of our state’s rich diversity and heritage. We presume our judges, experts, and juries appreciate and accept our cultures, but should we take this for  granted, especially in family law, where the load-star test for custody cases boils down to the best interest of the children?

Culture is a huge part of raising children because it includes customs, holidays, religion, language, and the way we express appreciation for each other in a family. I recently had a case where one parent predominantly spoke Spanish and the other parent only spoke English. The child knew mostly English and only some Spanish words, such that she could communicate with her father on a basic level. At the conclusion of the hearing, the hearing officer ordered that Father speak English with the child. I presume that the hearing officer believed it was in the child’s “best interest”, but should  the father have been ordered to speak English to his child under these circumstances when she knows both languages and Spanish is a part of Father’s culture?

Does the expert or guardian ad litem’s background have an influence on what he or she will ultimately recommend to the court? If you have been lucky enough to avoid the heartache of a custody battle, let me explain what these people have to do with a family law case. If a dispute over custody exists, a court may appoint a psychologist as a custody evaluator. This expert will evaluate the parties and their children and ultimately make a recommendation to the courts on legal and physical custody. A guardian ad litem is a licensed attorney who represents the children in the case and who, at the very least, depending on the scope of the judge’s specific order, will meet with the parties, the children, possibly teachers and therapists, and make a recommendation to the court based on the children’s interests. In the case I described above where the court appointed a guardian ad litem, I specifically chose someone who speaks Spanish. First, my client needs to be able to communicate his points clearly in a language that is most accessible to him. Secondly, my client needs someone to understand his culture because from his point of view, it says so much about who he is and how he would like to raise his daughter.

But this issue is not exclusive to the Spanish speaking cultures. Religion has also become a very important topic.  Joint legal custody guidelines state that unless parents agree, the children’s religion shall not be changed from the status quo. So, if your child was baptised in one church, the other parent can not unilaterally baptise the child in another church.  Under the constitution, we have religious freedom, but some recommendations are written so closely bordering on limitations of this freedom, that it raises concerns for clients.  Some experts or guardian ad litems recommend that religious discussion is limited in the home because it causes conflict between the parties. Is that appropriate? Should the courts be making these recommendations orders because its in the “best interest” of the child?

Family law is an ever evolving practice and these are some of the issues our firm considers before make moves in our clients’ cases and we recommend that you think about these issues too. If you have any questions or comments, please comment below. We look forward to your feedback.

Best,
Amanda

This past weekend I went to Orlando for a wedding. My husband and I had enough time to visit Disney World and other attractions while we were there. I looked around at all of the families there and thought: I hope our clients get an opportunity to enjoy this place with their kids.

Do you have a parenting plan with two weeks of uninterrupted vacation time with your child(ren)?

Let’s say you entered a pro se parenting plan because you and your ex-significant other were on good terms at that time.  Maybe the two of you only thought of the day to day occurrences regarding the parenting plan and didn’t think to include vacation time. Now let’s say you remarried or met someone new, became blessed with more children, and now would like the whole family to take a vacation together, but your parenting plan doesn’t give the right. To make things worse, now you’re on strained texting terms only with your ex-significant other. Of course you’re going to want the whole family to go on vacation; you don’t want to leave anyone out. What should you do?

First, you should know that the above-described situation is not at all uncommon. We see it all of the time. You need to know that spending vacation time with your child(ren) is a part of enjoying joint legal custody. You should have an opportunity to vacation with your kids, and we can show you how to achieve a parenting plan where you can plan an extended vacation that isn’t limited from Friday to Sunday at 6 pm.

In short, if you want to spend a lot of money at Disney World, Sea World, and the like, your limited parenting plan shouldn’t be the only thing stopping you.

Warmly,

Amanda Navarro

This week I took over David’s helm on the blog to share with our clients. Some of you may not know, but I love the study of constitutional law, and I’m delighted to write about the health care mandate. After all, for better or worse,  we will all be effected by whatever happens this June. – AN

The county is abuzz with President Obama’s health care mandate going before the United States Supreme Court to determine its constitutionality. There are a lot of opinions circulating about whether it will survive after June when the Court makes its decision. Let me break down the legal arguments. Whether you’re blue, red, purple, or polka-dot in your political leanings, tell us what you think.

States’ Argument

The 26 states  argue that the federal government can not force individuals to buy health insurance because there is no grant of power in the constitution for the federal government to do so.  Maybe it has been a while since you perused the Constitution, and unless you’ve taken Con-Law recently, why would you? The Commerce Clause grants the federal government power to regulate interstate commerce. It was expanded for some of the Court’s history, but since the 1990s, it has lost some if its expansive authority. Some of the most recent federal laws challenged for constitutionality as part of interstate commerce included guns and domestic violence. Without getting in to the cases, if you’re a conservative, those topics might strike as completely unrelated to interstate commerce. Today’s Court, primarily, four of the current sitting judges, follows a stricter interpretation of the Commerce Clause. If the past decade of rulings is any indicator of how the health care mandate will turn out, the future does not look great for the law.

The Administration’s Argument

The Administration argues that its constitutional and finds it basis in the Commerce Clause and the Necessary and Proper Clause. Everyone at one time or another is going to need health care, which means that at some point or another, you will be part of the multi-billion dollar industry and requiring care. If everyone at one point is going to need services and health insurance involves interstate commerce, shouldn’t individuals be required to purchase health insurance? Under the Necessary and Proper Clause, this law is reasonably adapted to not infringe on your rights or the power of the States, but to ensure that all Americans will have some form of insurance and we will not bankrupt the country with health care costs.

Again, what are your thoughts about this law? Do you think that the government has the right to mandate health insurance? Do you think it’s the government’s obligation to make sure everyone has affordable health care?

~ AN

Reasoning and methodology are keys to reliable, trustworthy expert testimony: Experts reason from data developed from reliable methods to derive their opinions. In the past few PsychologyLaw Briefs, we’ve offered two questions to test whether experts attended to reasoning problems that can infect their testimony: Did the expert actively consider reasonable alternative explanations of her data? Does the expert know the judgment biases that could infect her reasoning? The first question addresses whether experts kept their mind open to the data while forming their opinions—important because biases often function outside our awareness. Our last Brief, addressing the second question, showed how confirmation bias and overconfidence bias steer data to predetermined conclusions and opinions. Let’s look at two more biases: the availability bias, and the anchoring and adjustment bias.

Availability bias occurs when the expert is overly influenced by knowledge that comes to mind easily—information that is vivid, recently disclosed by a lawyer or in pleadings, and/or is similar to previous cases or events in which the expert has participated. For example, an expert, steeped in “diagnosing” abuse but unfamiliar with the professional literature on abuse, may uncritically view alarming allegations as similar to her previous cases—somehow, the cases, with apparent similar facts, seem alike. Or an expert having evaluated only a few abuse cases may judge the current case by comparing it to those previous cases. Not inclined towards the hard work of considering alternative explanations of the data, these experts fall prey to simple answers—overly influenced by easily recalled, familiar cognitively “available” information.

Anchoring and adjustment, a related bias, occurs when the expert latches onto a particular explanation of the data, and that explanation then becomes the “anchor” from which subsequent data will be interpreted—like a salesman beginning with a high offer to “anchor” the bargaining. Subsequent give-and-take may adjust the anchor, but not by much. For example, one study showed a bias among clinicians to minimize or dismiss data of a patient that indicated emotional problems when that patient was seen initially as less disturbed. In your case, did the expert use key information about the litigants received early from the lawyers or pleadings to anchor her judgments of the litigants? To counter this tendency, experts must actively consider reasonable alternative explanations of data that they consider while developing their opinions.

Availability bias? Anchoring and adjustment bias? As with other biases, challenge experts—on direct or cross—to define the biases and then to explain how they kept the biases from infecting their opinions.

References: John A. Zervopoulos, Confronting Mental Health Evidence 74–77 (2008).

Brief Quote: “This [Daubert] gatekeeper function requires the judge to assess the reasoning and methodology underlying the expert’s opinion. . . .” Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000).

John A. Zervopoulos, Ph.D., J.D., ABPP is a board certified forensic psychologist and lawyer who directs PsychologyLaw Partners, a forensic consulting service. Dr. Zervopoulos—combining the psychological and legal perspectives—assists lawyers to organize, critique, and use psychology-related materials and evidence in their cases. He also authored Confronting Mental Health Evidence: A Practical Guide to Reliability and Experts in Family Law, published in 2008 by the ABA. Dr. Zervopoulos is online at www.psychologylawpartners.com and can be contacted at jzerv@psychologylawpartners.com or at 972-458-8007.

If you have questions about experts in your case then contact us at 505-880-8737.

Our last two PsychologyLaw Briefs focused on how mental health experts use inductive reasoning, a “bottom-up” problem-solving approach, to develop their opinions: experts reason from their data to derive their conclusions and opinions. But also noted was that experts, like us all, are vulnerable to reasoning flaws—biased thinking that can infect and compromise judgments. To test the quality of experts’ thinking, two caselaw- and research-based lines of questions were proposed: Did the expert actively consider reasonable alternative explanations of her data? Does the expert know the judgment biases that may infect her opinions? Our last Brief asserted that to manage judgment biases effectively, experts must actively consider reasonable alternative explanations of the data until the best explanation (the opinion) survives.

But to adopt this approach, experts should know the judgment biases that may infect the reasoning that supports their testimony—competent experts do; incompetent ones don’t. Lawyers enhance their direct- and cross-exams when they ask experts how they managed those biases. In the next few Briefs, we will look at several judgment biases that can arise when experts neglect to actively consider reasonable alternative explanations of their data. Let’s start with two: confirmatory bias and overconfidence bias.

Confirmatory bias is the tendency to seek or recall information that proves one’s view while discounting or ignoring information inconsistent with that view. Confirmatory bias often takes hold with two kinds of experts. The first expert, unfamiliar with the professional literature in the area of her testimony, doesn’t know what reasonable alternative explanations of the data are available to consider. Thus, she bases her opinions primarily on personal experience and intuition. The second expert, testifying to promote an “agenda,” chooses not to actively consider alternative explanations. Instead of the “bottom-up” reasoning-from-the-data approach, these expert types adopt a “top-down” approach, yielding to confirmatory bias by using premature conclusions to cherry-pick and explain the data.

Overconfidence bias is fed by confirmatory bias as well as by other judgment biases. Confidence is not an indicator of an opinion’s reliability; experts still must show the bases for their testimony. Research shows that people’s subjective confidence in their judgments tends to be greater than is objectively justified in tasks of moderate-to-high levels of difficulty—characteristic of the expert role. As with other judgment biases, overconfidence occurs when people quickly focus on intuition or a preferred explanation of their data rather than considering alternative explanations of the data.

Confirmatory bias? Overconfidence? Challenge experts—on direct or cross—to define these biases and to explain how they kept these biases from infecting their opinions.

References: Derek J. Koehler, Hypothesis Generation and Confidence in Judgment, 20 J. Experimental Psychol.: Learning, Memory & Cognition 461 (1994); John A. Zervopoulos, Confronting Mental Health Evidence 74–77 (2008).

Brief Quote: “A flaw in the expert’s reasoning from the data may render reliance on a study unreasonable and render the inferences drawn therefrom dubious. Under that circumstance, the expert’s scientific testimony is unreliable and, legally, no evidence.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997).

If you have questions regarding your custody case please contact us immediately at 505-880-8737.

The Standridge Law Firm focuses in helping veterans receive their rightful disability benefits for giving their service to our country in peace time and in war time. Notably, the wars on Iraq and Afghanistan have produced a ubiquitous disability that isn’t necessarily visible: Post Traumatic Stress Disorder (PTSD). And now, we are seeing the intersection of PTSD in our criminal clients. What does all this mean?

If you don’t know much about PTSD, check out this link from the Mayo Clinic at http://www.bing.com/health/article/mayo-MADS00246/Post-traumatic-stress-disorder-PTSD?q=post-traumatic+stress+disorder&qpvt=PTSD. In our veterans’ cases, combat events trigger PTSD episodes and can cause terrifying reactions, including blacking out during stressful situations. Treatment includes therapy and medication, sometimes both.

The prevelance of PTSD in our returning veteran community creates a legal issue. Simply,do PTSD sufferers have comptency to stand trial? A criminal defense case involves the complete participation and understanding of the criminal defendant, particularly because liberty is at stake. Criminal defendants experiencing PTSD may not have the ability to assist in their own defense because they can’t remember events relevant to the criminal charges or to understand and/or partcipate in the preparation and resolution of their cases.

This is a novel issue in New Mexico, but our prediction is that the courts are very likely to hear about it in the next few years. As always, we will keep you posted with any new developments.

If you have any questions regarding any legal matter please contact us at 505-880-8737. Thanks to Amanda Navarro for writing this post based on her personal interaction with clients who suffer with PTSD.

If you follow these pointers you will be better able to have a positive outcome in your case. If you or someone you know is going through a divorce have them call us so we can walk them through the expectations of a divorce along wtih pointing them in the direction they should go. We are here to help. 505-880-8737.

http://www.msnbc.msn.com/id/46101025/ns/technology_and_science-security/?ocid=ansmsnbc11

This is a win for all Americans. In recent years there has been more and more government intrusion into the lives of Americans. We are slowly headed towards a complete gutting of the constitution and our rights. This nation was founded on principles of limited government and the constitution was meant to protect us from the government by limiting the authority of the government. Unfortunately, many today think that government grants us our rights instead of government protecting those rights. It is time we re-evaluate the role of government in our lives. This goes beyond Republican or Democrat. It involves issues fundamental to us as citizens.

“The administration of justice is the firmest pillar of government” George Washington

The Supreme Court let justice prevail!

This means that you could be married to the meanest person around who has done horrible things and still they are going to be entitled to 50% split of community assets and debts. This is what is meant when one talks about no fault divorce. In addition, there is the catch all phrase of irreconciable differences that is generally used when seeking a divorce. However, our firm has used other grounds to obtain a divorce for an individual.

So, if you go and visit an attorney and think that telling him/her all of the bad things about the other person will somehow benefit you think again. Now be clear, some of those “bad” things may impact on custody issues but those “bad” things have no impact on the community property division or whether a divorce will or will not be granted. This is the general understanding of a “no fault” divorce.

If you have any questions regaridng your divorce case please contact us at 505-880-8737.

Oftentimes, parents are either ordered or agree upon undergoing mediation in an effort to solve some of their parenting differences. Mediation can be a good thing, but, if not handled properly, can become a waste of time, frustrating and cause further problems for litigation. It is our firm belief that 90% of any case is won or lost outside of the court room. Proper planning is a must if you want to see success in your custody case. Here are three tips to help you prevail in your mediation process.

1. Understand the deeper purpose of mediation. While the bigger picture of solving your problem is accurate, you must understand that mediation can serve other purposes like testing the strength of your case.

2. Go in with a plan. Many people just leave it up to the mediator to start the discussion. Take control of the discussion by going in the mediation session with a written plan of what you want and why.

3. Don’t agree with anything you cannot live with permanently.

You can contact us at 505-880-8737 or by emailing us at info@standridgelawfirm.com.

For more helpful hints visit our website at www.standridgelawfirm.com or ‘Like’ us on Facebook: facebook.com/standridgelawfirm.