Texas Trials for Conservatorship and Possession (Custody)

A trial is like an extended, more formal hearing.

In a trial about custody (officially called conservatorship and possession in Texas), both parents explore their evidence and question witnesses in front of a judge or jury before receiving a final order.

If you don't settle your case, you'll end up in trial. Because trials are expensive and stressful, most parents settle. Courts encourage this by requiring mediation before trial.

Your trial will cover all the issues still disputed in your case. If you're divorcing and have a minor child, this will include marital issues (like property division), plus conservatorship and possession.

Preparing for trial

If you're working with an attorney, they'll guide you through preparations. Your job is to provide everything they ask for and be completely honest so they can prepare for arguments the other side may be compiling.

Even if you're representing yourself, consult with an attorney as much as possible. Ask a legal aid society if you're eligible for free help, or consider hiring a lawyer to work on just the most complex parts of your case.

Parents learn what the other side is preparing through a process called discovery. During discovery, each parent can interview the other's witnesses under oath and require the other parent to share documents relevant to the case, like emails or financial statements.

Very often, cases headed for trial have an amicus attorney appointed. The amicus helps the judge gather information necessary for an informed ruling. Before trial, they interview people connected to the case, observe the family and review relevant documents.

As soon as possible, start collecting evidence that proves your ability to care for your child. Use only what's permitted under the Texas Rules of Evidence.

In most courts, parents must share a list of their planned exhibits and witnesses with each other and the court before trial.

Evidence comes in two forms: exhibits and witness testimony.

Exhibits

Exhibits are things you'll present: documents, reports, charts, screenshots, photos, audio recordings and more. Use anything that proves your fitness as a parent, from a calendar showing when you care for your child to videos of you with them.

Make sure the judge or jury knows what you believe is best for your child by presenting a proposed parenting plan and schedule. If your trial is in person, bring enough copies of documents for you, the other parent and the court to have one each.

Witnesses

Witnesses can be anyone with knowledge relevant to the case. Two types exist.

Expert witnesses are appointed by the court or hired by a parent. They give professional opinions. Examples of expert witnesses include child custody evaluators and forensic psychologists.

Lay witnesses do not offer expert opinions. In fact, they usually don't give opinions at all but testify about their personal knowledge. They may be family members, friends, teachers, religious leaders, etc.

Parents almost always testify as witnesses (lay witnesses, specifically). Children are more likely to do a private interview with the judge. It's extremely rare for children to testify in court.

Witnesses generally can't discuss anything they didn't personally observe; in other words, no hearsay is allowed.

Scheduling and timing

Trials usually begin six months to a year after the initial filing. Complex cases, jury trials and trials in populous counties may have longer waits.

In rare cases where a child would be negatively affected by waiting for trial, courts may give the case scheduling preference. To request this, file a Motion for Preferential Trial Setting.

Trials expected to be a few hours are generally in one sitting. Longer trials may spread over days or weeks (and not always consecutive ones).

Don't be surprised if your trial gets delayed, due either to court scheduling or requests for more time from a parent.

Procedures

Trials take place in a courtroom or online.

For in-person trials, the parents and their lawyers sit before the judge, and the gallery ― which may include friends, family members and the public ― sits behind them. Witnesses can't sit in the gallery until they've testified. If there's a jury, the jury box is to the side of the room.

For online trials, generally everyone involved logs in from a separate device, but your lawyer may prefer to sit next to you and share a computer.

Trials about conservatorship and possession are open to the public. In rare cases, attendance can be limited to people directly affected by the case if the judge and parents all agree.

At the start of trial, the parent who filed the suit (the petitioner) has the option to give an opening statement to introduce how they see the case. The other parent (the respondent) has the opportunity next.

The petitioner also has the first chance to call witnesses and present evidence. They can call as many witnesses as necessary, provided all were on the witness list shared with the court and the other parent. Witnesses swear to tell the truth, then answer questions from both sides, and sometimes from the judge.

Next, the respondent calls their witnesses and presents evidence.

Then both parents have the opportunity to present additional evidence, called rebuttal evidence, to disprove the other side's claims.

When both parents have presented their cases, they give closing arguments to summarize their main points.

If a parent has a lawyer, the lawyer speaks for them throughout the trial, except during the parent's testimony.

If your case has an amicus attorney, they can make opening and closing statements, call and question witnesses, and present exhibits.

Frequently, judges announce rulings immediately following closing arguments, but they may take several days or even weeks. Later, one of the lawyers writes the rulings into a final order for the judge to sign.

The final order replaces any temporary orders in the case. Your final order is likely to look very similar to your temporary orders, unless you proved that the temporary orders didn't work.

Your options for changing a final order include appealing to a higher court or, if there's been a substantial change in circumstances, applying for a modification.

Jury trials

Texas is the only U.S. state that allows jury trials for custody cases. You have the right to request a jury trial to decide conservatorship, which parent can select the child's main residence and what area the residence must be in. You'll have to pay a jury fee (around $30).

Very few parents use their right to a jury trial. Instead, most stick with a bench trial, where a judge makes a ruling alone. A judge can decide the issues that a jury can, plus others, like child support and when each parent has possession of the child.

A jury trial can be combined with a bench trial in a bifurcated trial. First, the jury delivers a verdict on the issues assigned to them; then, the judge rules on the remaining issues.

Usually, parents request juries when they believe a group of peers would be more sympathetic to them than a judge. Attorneys sometimes recommend jury trials when the assigned judge tends to rule against people in their client's situation — for example, parents who have cheated on their spouses or who are recovering from substance abuse.

Both the trial itself and the preparation take longer when a jury is involved. As a result, jury trials can cost twice as much as bench trials.

One additional item to prepare for a jury trial is the jury charge. This document lays out instructions and questions to guide the jurors. Both parents submit a proposed jury charge, and the judge decides the final version. Frequently, this happens to prior to trial, but some judges wait until the close of evidence.

Your jury will have either six or 12 members. They'll be chosen at the start of the trial in the voir dire (or, more simply, jury selection) process. Each lawyer will question potential jurors and dismiss people who they do not think would not look favorably upon their client.

From there, the trial proceeds much like a bench trial (details above).

After closing arguments, the jurors go to a private room to make a decision. At least five of six jurors or 10 of 12 must agree to reach a verdict.

Tips for parents going to trial

• Observe other trials ahead of time, especially ones with your judge.
• Do not bring your children, unless they're testifying (which is rare).
• Dress like you're going to a job interview.
• Arrive or log on early, and keep your calendar open for the day.
• Don't talk about the case when you're in or near the courthouse. You never know who might overhear.
• Don't be too friendly with witnesses who are supposed to appear unbiased.
• Show respect to everyone. Refer to the judge as "Your Honor," and never interrupt anyone.
• Don't chew gum or eat during the trial.
• Communicate with your lawyer by writing notes instead of talking aloud.
• Be honest when you are testifying; you are under oath.
• Take your time answering questions, but don't ramble. Give your answer thought, begin with "yes" or "no," and then follow up with facts.
• Don't lose control of your emotions. Watch your facial expressions and volume.
• Ask for clarification if you don't understand a question, and admit when you don't know an answer.
• Remain respectful even if you are upset by the ruling. You may end up in court again and don't want behavior in the heat of the moment to affect you later.

Staying organized

Going to trial over conservatorship and possession requires serious organization.

You'll need to present evidence, which could range from messages with the other parent to a calendar showing when you care for your child. You should also present a proposed parenting plan and schedule to the court.

The Custody X Change app lets you create and manage all of these elements in one place.

With parent-to-parent messaging, personalized custody calendars, a parenting plan template and more, Custody X Change makes sure you're prepared not only for trial but for every step of your case.