famMany 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.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.