Texas Family Lawyers:

Texas, I've recently learned, leaves child custody questions to juries — an unusual practice. I'd like to talk to a Texas family lawyer who's acquainted with how this practically works out.

Fortunately, my interest is purely academic; this is for my Parent-Child Speech and Child Custody Speech Restrictions piece. (The more family law cases I read, the more resolved I am to stay married.) If you're a Texas family lawyer who is willing to talk to me about this, or can recommend a friend who fits that description, please let me know at volokh at, so we can set a time that's convenient for you. Many thanks!

lucia (mail) (www):
Did you intend the link to direct us to your personal web page? Despite the url that ends .pdf, my browser sends me here: Not that there is anything wrong with that. . .

I suspect either the ../custody.pdf file has not been loaded, or some sort or redirect has been coded into the .htaccess.
8.8.2005 11:45pm
Stephen M (Ethesis) (mail) (www):
I'd be glad to talk to you, having tried such a case to a jury (only about 70 or so a year are actually tried to juries). The jury gets a range of three options, the middle of which means that the judge actually makes the decision (joint managing conservatorship which the judge deciding who is primary).
8.8.2005 11:50pm
I just wanted to add that I seem to recall, from my family law class at a Texas law school (although I've never practiced), the instructor's comment that the parties in just about any kind of case are entitled to a jury if they want one in Texas. My practice has been largely criminal so far, so of course, this has been the case. I understand that there are some jurisdictions where the lowly traffic ticket cannot be submitted to a jury, but in Texas, you can even have six people decide whether or not you ran that red light.
8.9.2005 11:32am
Hans Bader (mail):
After reading more than 10,000 family law cases, it's hard for me to see how juries could do much worse than judges in child custody cases. The "best interests of the child" standard is so vague as not to be a standard at all. (Disclosure: I have no kids and am not divorced).

It's also hard to see how a jury could be much more biased: many, many judges, if not the majority, have a bias in favor of mothers, while a few have a bias in favor of fathers.

I used to work at a non-profit law firm that handled constitutional cases, mainly discrimination and First Amendment cases. Many people contacted me for help in family law cases, describing clear constitutional violations (e.g., due process, equal protection, or right to counsel in contempt cases), but we never took any of their cases.

Why? Constitutional violations in state court are basically immune from federal court scrutiny, owing to Younger abstention and the Rooker-Feldman doctrine. We only practiced in federal court, so we could not take their cases. And as a result, glaring constitutional violations continued unremedied.

Since many non-profit law firms only practice in federal court, that means that a state judge can often get away with a constitutional violation that any other kind of state official would think twice about doing, lest he be sued for damages under 42 USC 1983.

(State appeals courts tend to be rather indulgent about errors in family court proceedings, applying obscure or arbitrary procedural default rules stringently to bar any review, or coming up with post hoc justifications for inexplicable rulings to uphold them).
8.9.2005 2:16pm
How does using juries in family court cases square at all with confidentiality?
8.9.2005 8:54pm
arbitraryaardvark (mail) (www):
Not about texas juries, but locally we had a flap over a judge
in a divorce case ordering the parents not to expose their child to their religion, wicca. link. link.
8.10.2005 5:52pm