Texas Juries Decide Child Custody Cases

In most states, child custody matters are decided by judges; but in Texas, they are in large part decided by juries. Here’s a Texas Supreme Court decision from yesterday, Gopalan v. Marsh (written by Justice John Devine), that illustrates this and reaffirms the primacy of the jury as to some such matters:

In this divorce proceeding, the jury found that the father should have the exclusive right to designate the children’s primary residence. But the trial court awarded the mother more time with the children under the divorce decree’s possession order.

The central issue is whether the court’s possession order contravened the jury verdict. We hold that it did. The ordinary meaning of “primary residence” does not encompass a home where the child lives less time than elsewhere, and the statutory context supports that understanding….

Section 105.002(c) of the Family Code provides that “[i]n a jury trial”:

(1) a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of: …

(D) the determination of which joint managing conservator [generally a parent] has the exclusive right to designate the primary residence of the child; … [but]

(2) the court may not submit to the jury questions on the issues of: …

(B) a specific term or condition of possession of or access to the child; or

(C) any right or duty of a conservator, other than a determination under Subdivision (1)(D), (E), or (F).

At its core, this question comes down to what “primary residence” means within the statutory context…. When a statutory term is undefined, as here, we apply its common, ordinary meaning unless this yields an absurd result or a different meaning is apparent from the statutory context. To ascertain a term’s ordinary meaning, we often start by consulting dictionaries. Dictionaries define (1) “residence” as “the place where one actually lives or has his home as distinguished from his technical domicile,” (2) “primary” as “first in rank or importance,” and (3) “primary residence” as “[t]he place where a person lives most of the time.” Simply put, a home where the child actually lives less time than elsewhere is not the child’s “primary residence” as that phrase is ordinarily understood….

We therefore hold that the trial court contravened the jury verdict by awarding greater possession time to Marsh. The verdict on the primary-residence right does not dictate a “specific term or condition” of possession; it imposes a general constraint. Thus, remand is necessary for the trial court to redetermine the decree’s possession order….

[It] deserve[s] mention … [that] the plain meaning of “primary residence” in its statutory context does not preclude a possession arrangement of equal periods. The Family Code provides that “[j]oint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to each of the joint conservators.” This provision implies that equal time is permissible; otherwise, the statement that it is not required would be surplusage. And in such an arrangement, the children would not be spending more time living elsewhere. That said, there can be only one “primary residence.” Accordingly, even when the parent with the primary-residence right has been awarded equal or greater possession time, the order would still contravene the jury verdict if the possession periods are structured such that the designated residence would not be “primary” in the sense of “first in rank or importance.” …

Richard R. Orsinger, Leslie Bollier, Katherine Obando, and Stephen Orsinger represent Gopalan.