Texas Conservatorship, Possession and Access Trials

A trial is like an extended, more formal version of a hearing. Both parties have the opportunity to explore their evidence and question witnesses in front of a judge or jury before a final order is issued.

If you are unable to reach an agreement with the other parent during litigation, you will ultimately end up in trial. Because trials are expensive and stressful, most parents opt to settle. Courts encouage this by requiring parties to attend mediation before resorting to trial.

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Very often, cases that appear headed for trial will have an amicus attorney appointed. The amicus helps a judge gather information necessary to make an informed ruling. Before trial, he or she interviews people connected to the case, observes the family, and reviews documents. During trial, the amicus can make opening and closing statements, call and question witnesses, and present exhibits.

If you're divorcing, your trial will cover issues related to the divorce (like division of property), as well as the suit affecting the parent-child relationship (like conservatorship and possession). The result will be one final decree that covers all the topics.

If you had temporary orders issued earlier in your case, your final order is likely to look very similar, unless you have compelling evidence that the temporary orders haven’t worked.

Texas is the only U.S. state where you can have a jury trial (more information below) for cases about child conservatorship.

Preparing for trial

Because your trial will end with a final order from the court, preparation is crucial. As soon as possible, start collecting evidence that proves your ability to care for your children.

If you are working with an attorney, he or she will guide you through the process. Your job is to provide everything your attorney asks for and be completely honest so he or she can prepare for arguments the other side may be compiling.

If you are 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 limited aspects of your case. Trials are intricate, and advice from a professional can be pivotal in getting the outcome you’re hoping for.

The time before a trial is spent preparing evidence. Use only what’s permitted under the Texas Rules of Evidence. Remember that witnesses can generally not discuss anything they did not personally observe; in other words, no hearsay is allowed.

Evidence comes in two forms: exhibits and witness testimony.

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 the kids to videos of you with them.

Make sure the judge or jury knows what you believe is best for your children by bringing a proposed parenting plan and schedule to trial. Organized, detailed documents that demonstrate your requests ― like customizable Custody X Change plans and schedules ― can influence a ruling. As with all documents, bring a copy for the court, one for the other parent, and one for yourself.

Witnesses can be anyone with knowledge relevant to the case. Parents almost always testify as witnesses, whereas children are more likely to do an interview with the judge outside of the courtroom. It is extremely rare for children to testify.

Two types of witnesses exist. Expert witnesses are appointed by the court or hired by a party. They give professional opinions about a case. Examples of expert witnesses are child custody evaluators or 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 of a situation. They may be family members, friends, teachers, religious leaders, etc.

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

The parties seek to learn more about what the other side is preparing through a process called discovery. In discovery, each party can interview the other's witnesses under oath and require the other parent to share personal documents relevant to the case, like emails or financial statements.

Scheduling and timing

Trials usually begin six months to a year after the initial filing. More complicated cases have longer waits, as both sides need more time to gather evidence. Jury trials and trials in heavily populated counties also have longer waits.

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

Trials expected to be a few hours will often be done in one sitting. Longer trials may be broken up into sessions spread out over days (not always consecutive), weeks, or in some complicated cases, even months.

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

Procedures

Trials take place in a courtroom. The parents and their attorneys sit before the judge, and the gallery ― which includes family, friends, and anyone from the public (but not witnesses, until after they've testified) ― sits behind them. If there’s a jury, the jury box is to one side of the room.

Trials about conservatorship and possession are open to the public, but in rare case, 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 he or she sees the case. The other parent (the "respondent") has the opportunity next. If the parents are represented by attorneys, the attorneys will speak on their behalves.

The petitioner also has the first chance to call witnesses and present evidence. He or she can bring up as many witnesses as necessary, provided they were on the witness list filed with the court and the other parent. Witnesses swear to tell the truth, then answer questions from both parties, and sometimes from the judge.

Next, the respondent calls his or her witnesses and presents evidence.

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

The process of questioning witnesses and presenting exhibits can take hours or weeks, depending on the amount of evidence available and necessary.

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

Frequently, judges announce rulings point by point immediately following closing arguments, but they may take several days or even weeks before giving their verdict. Later, one of the attorneys will write it in the form of a final order for the judge to sign.

The final order replaces any temporary orders in the case. 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. In Texas, you have the right to ask a jury to decide conservatorship, as well as which parent can select the child’s main residence and what area the residence must be in. The court cannot deny a parent’s request for a jury trial if the request was filed on time and the jury fee has been paid (usually around $30).

Very few parents use their right to a jury trial. Instead, most stick with the standard bench trial, in which the judge has sole authority to issue a ruling. The judge can decide the same issues a jury can, plus any additional issues in the suit, such as possession and child support.

A jury trial can be combined with a bench trial in what’s called 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 their peers will be more sympathetic to their circumstances than a judge. Attorneys sometimes recommend jury trials when the assigned judge tends to rule against parties in their client’s situation — for example, parties 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 element in a jury trial is the jury charge. This document lays out instructions and questions to guide the jurors. Both parties 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 a process called voir dire (or, more simply, jury selection). Each lawyer will question potential jurors and dismiss a specified number of 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 take the jury charge to a private room to make a decision. At least 5 of 6 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.
  • Invite anyone to sit in the gallery who will give you confidence; trials are public, but the audience must remain silent.
  • Do not bring your children.
  • Dress like you're going to a job interview.
  • Arrive early so you can find your courtroom, 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.
  • Stand up when the judge or jury enters or leaves the room.
  • Don’t chew gum or eat in the courtroom.
  • 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, possession and access requires serious organization. You'll need to present evidence that could range from a calendar showing when you care for your child to a log of interactions with the other parent. In many cases, you'll need to present a proposed parenting plan and possession schedule to the court, as well.

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

With a parenting plan template, personalized possession calendars, a digital journal and more, Custody X Change makes sure you’re prepared not only for trial, but for every step of your case.

Take advantage of our technology to get what’s best for your children.

Custody X Change is software that creates customizable parenting plans and possession schedules.

Make My Texas Plan Now

Custody X Change is software that creates customizable parenting plans and possession schedules.

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