After seeing Divorce Corp., I’m taking the opportunity to correct the impression that there are no juries in family law cases – only judges. The documentary quotes Thomas Jefferson about the importance of juries:
“It is left, therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.”
One of the law professors in the film said it more simply: Juries keep us honest.
While the absence of a jury in family law trials may be norm in some states, juries are alive and well in Texas. The right to trial by jury is guaranteed in the Texas Constitution under Article I Section 15 as inviolate. In fact, all one must do to obtain a jury trial is timely pay the sanctioned jury fee to the clerk of the court, which is about $30.00.
In child custody cases a party is entitled to a jury verdict on issues such as:
- Whether parents are appointed as joint managing conservators,
- Whether one parent is appointed as sole managing conservator,
- Whether a party is appointed a possessory conservator
- Which party has the exclusive right to designate the primary residence of the child, and
- If there is a geographic restriction on the primary conservator, what that restriction will be.
Once the jury delivers a verdict, the judge cannot disregard the verdict. See Tex. Fam. Code Section 105.002. Texas is unique in delegating these decisions to a jury if a party makes a demand for jury trial.
In issues pertaining to marriage dissolution and property division the jury can also make binding verdicts on in areas such as grounds for divorce, characterization of property, and valuation of property.
Jury trials in family law cases are rare mainly because of the expense of presenting a jury trial in comparison with a bench trial. Whether an attorney is preparing for a jury trial for commercial litigation, personal injury, probate or a family law matter, it is always more labor intensive and expensive. However, the jury trial is very powerful and can protect a litigant if a presiding judge is known to have a bias that could impact a party in a family law case.