Can I… & should I…
request a jury trial?

Family law practice and procedure tends to be pretty similar across the United States. However, Texas is the only state that allows jury trials for child custody issues. The right to a jury trial in Texas is usually limited to certain issues:

  • The decision to appoint parents as joint or sole conservators of their children;
  • The question of who will have the right to determine the child’s primary residence (often loosely referred to as being the “primary” parent);
  • Whether or not there should be a geographic restriction on where a parent can establish the primary residence; and
  • In divorce cases, the character and value of property to be divided, as well as the grounds for divorce.

Issues like child support and the possession schedule are still reserved for the judge.

Due to the perceived additional cost, the private nature of family law issues, and the fact that many just do not realize it is available, jury trials are rare in custody cases.

So, why request a jury? Because sometimes it makes sense to do so.

Yes, jury trials can mean additional expense, preparation, and time at trial. It can be difficult to lay out sensitive family issues and disputes in front of 12 strangers (6 if you’re in County Court). However, even the best judges are human—they can be swayed or influenced by the wrong evidence, or overly focused on preserving the status quo.

In many cases, temporary orders are already in place before a final hearing. There is a common (and founded) belief that judges tend to preserve those orders by memorializing them into their final ruling. However, this is not always what is best for a child.

Judges often have predispositions to certain types of issues – for instance, many judges are ardently opposed to lifting geographic restrictions or ordering broader geographic areas that allow one parent to move further away from the other. In fact, Texas public policy seeks to ensure that children of fit parents are afforded the chance to have close and continuous contact with both their parents. As a result, many parties seeking to move further away, or establish a broad area in which they can determine a child’s residence, ask a jury to decide that issue instead of a judge.

In any event, a jury trial is a serious commitment, and not something that should ever be requested lightly. Our firm will counsel clients on the costs, benefits and propriety associated with requesting a jury trial. At trial, we pride ourselves on our ability to persuade jurors with a sincere presentation rather than theatrics, making clear to them why they are needed to make decisions regarding what is best for our clients’ children.