Many things make Texas unique. But one thing stands out for family law attorneys and litigants – the right to have a jury decide custody of your children. Texas is the ONLY state in the US to allow custody jury trials. Eleven states allow juries in for some aspect of divorce litigation (Colorado, Georgia, Illinois, Louisiana, Maine, Nevada, New York, North Carolina, Tennessee, Texas and Wisconsin), mostly on the grounds or entitlement for divorce only. See Case Law Development: Jury Trial in Divorce Actions.
That being said, very few parents ask for a jury trial, making them a very rare occurrence in Texas. Reasons for this may be the stress of laying your life – both good decisions and not-so-good ones – out for 12 peers to judge; or, the added legal cost of a jury trial; or the unpredictability of the outcome. Most custody cases in Texas settle by agreement because most parents would rather participate in making decisions about their children rather than allow strangers to make those decisions for you. Also, jury trials in custody cases are rare because temporary orders are generally entered at the beginning of a case and neither judges nor juries are likely to do something against the temporary orders.
The right to a jury trial regarding children is limited to issues of joint or sole conservatorship, which parent has the primary to establish the child’s residence, and whether there will be any restriction on the child’s residence. All other issues, such as possession periods with each parent, decision-making rights and duties, and child support, are decided by the Judge.
The first stage of a custody jury trial is jury selection – called voir dire. The pronunciation of this word is subject to much debate. The rest of the country and world uses a French pronunciation – such as in this video. But we Texans have to put our own spin on it and say it like “vorr dire” (rhymes with “tire”). See survey of pronunciations here. This is where the lawyers get to ask the panel members questions about their attitudes and opinions as it relates to issues in the case to see if they will be good for the particular case. It is more like “de-selection” than selection of a jury because each side gets a certain number of strikes and the panel members who remain after the strikes become the jurors.
Next comes opening statement, where each side gets to tell the jury in a persuasive manner what they believe the evidence will show.
The evidentiary portion of the trial will take the longest. This is where the meat of the case is presented – witnesses and documentary evidence – to prove each side’s allegations.
When the evidence closes, the lawyers and the Judge will work together to formulate the jury charge, a written document that gives the jurors instructions and questions pertaining to the case. When the charge is put together, then it is read to the jurors and the closing arguments are given. Closing arguments are the lawyer’s last time to address the jurors. The purpose of closing argument is to draw the jurors’ attention to particular pieces of evidence as it relates to the instructions and questions the jurors will be tasked with answering.
When closing arguments are finished, the jurors go to the jury room with the evidence and jury charge to make a decision. In custody cases, like civil cases generally, it is not necessary to have unanimity. A vote of 10 out of 12 jurors is sufficient to reach a verdict, as long as the same 10 agree on everything.