Child Custody: A Texas Supreme Court Family Law Case

Texas Supreme Court judge writing a child custody decision

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While divorce and other family law cases are not without their own brand of drama, very few make their way to the Supreme Court of Texas. A child custody case did just that in 2023, and learning more about the case can give unique insights into the family law legal process.

If you’re facing a divorce or another family law case of your own, consulting with an experienced Round Rock family law attorney sooner rather than later is always to your advantage.

The Supreme Court’s Opening Stance

In the case in question, the court’s opinion begins with the interesting words, "rarely is the right to be heard by a jury in competition with the right to be heard at all.” They go on to share that, under the Texas Family Code, parents involved in custody cases face difficult choices – they can request a jury trial or they can request that the presiding judge interview their child, but they can’t request both.

In this case, the mother made her choice when she withdrew her request for a jury trial in order to invoke the trial court’s legal obligation to interview her teenage daughter about her primary residence. Ultimately, there was no jury trial or interview, and the father was granted the exclusive right to make primary residency determinations for all of the couple’s four children.

Family Code and Interviewing Children

The Texas Family Code allows for a child who is mature and at least 12 years old to weigh in on the child custody matter during an interview in the judge’s chambers. However, this statute only applies when the trial in question is a bench trial – or a trial that is heard by the judge rather than a jury. In other words, the parent must give up their right to a jury in order to benefit from the interview provision.

This decision is one that shouldn’t be taken lightly. Discuss your case and all of your possible options with a seasoned Round Rock family law attorney.

The Backstory

In 2017, the father in this case filed for divorce, and the case proceeded to trial in 2019 on a range of disputed divorce terms. One of these was which parent would retain the exclusive right to make decisions regarding where the four children made their primary residence. The daughter whom the mother wanted the judge to interview was their oldest child.

The Matter of the Interview

More than a year prior to the trial date, the father sought court interviews with the children. The mother, however, invoked her right to a jury trial – paying the associated fees in the process – which negated the father’s request for interviews.

However, at the pretrial conference, the mother withdrew her demand for a jury – setting her sights on her teen daughter being interviewed regarding her primary residence preference in chambers.

After the pretrial conference, the mother’s attorney emailed the following note to the trial court coordinator: “Please accept this letter as my formal written request to schedule X, a child subject to this suit over the age of 12, to confer with the Judge in chambers in accordance with (Texas Code) and the court’s posted policies and procedures.”

The court's policy was that children’s in-chamber interviews were scheduled in advance but conducted after testimony was complete. The mother’s attorney proceeded to call the coordinator almost 20 times in their effort to schedule the child’s interview and proceeded to make the request again at trial – pointing out that their client had given up their right to a jury trial for the sole purpose of an interview. The court declined the request based on the mother’s failure to file a written motion.

Post-Trial

Immediately after the trial ended, the mother filed a brief related to an interview with her child in chambers and included her oldest daughter’s preference of residing with her mother. Following this, she filed a motion requesting that the judge confer with the child, but the court neither ruled on her filings nor interviewed her daughter.

When the court issued the final divorce decree nearly a year later, the parents became joint managing conservators of the children, but the father was afforded the sole right to determine their primary residence.

The Appeal

The mother appealed the trial court’s ruling, but the court of appeals came back with a split decision to affirm. While the appeals panel unanimously found that the trial court was in error regarding its failure to conduct an interview with the teen, they disagreed on whether or not it caused the mother to experience harm.

The majority of the justices found that the trial court’s error was harmless because interviewing the child wouldn’t have diminished the trial court’s discretion in determining the children’s best interests. They stated, “Even if the child had expressed a preference to live with Mother, the trial court would not have been obliged to make a different conservatorship decision.”

The justice who dissented from this prevailing opinion argued that harm analysis shouldn’t apply to interview violations in the first place. Even if it did, the error harmed the mother because the trial court’s refusal to conduct an interview interfered with her ability to present her case properly to the court of appeals. The Texas Supreme Court granted a review.

The Supreme Court’s Review

The Texas Supreme Court carefully analyzed several primary concerns in this case:

  • Whether the trial court erred by not granting the interview

  • Whether the trial court’s error is subject to harm analysis

  • Whether the error caused harm

  • What the appropriate remedy is

Clearly, there is a lot to consider when going through a family law case. As such, it is important to have a Round Rock family law attorney by your side every step of the way.

Was the Trial Court in Error?

In child custody cases in which a jury isn’t involved, Texas Code generally provides that the trial court “may interview” a child in chambers in order to assess their preferences on the matters of “possession, access, conservatorship, and the right to determine primary residence.” Once the child reaches the age of 12, however, the language changes to “shall interview.”

The Supreme Court found that all the elements required for an in-chambers interview with the teen daughter were met;

  • She was over the age of 12.

  • Her mother’s application for her to be interviewed in chambers was timely.

  • The child’s ability to express her preferences wasn’t in dispute.

As such, the trial court had a duty to interview the daughter, and its decision not to do so was in error. While the trial court’s refusal was based on the mother’s failure to file a written motion prior to trial, there is no such requirement in the applicable statutes.

The fact that the mother’s attorney emailed the court coordinator on the matter, attempted to schedule the interview by phone multiple times, brought the subject up at trial, and submitted two requests post-trial sufficed.

Is the Trial Court’s Error Subject to Harm Analysis?

A trial court’s error won’t be reversed on appeal unless the error was harmful. While the mother claimed that harm analysis doesn’t apply to this situation, the Court found otherwise. As such, the matter of whether or not the trial court’s error caused damage had to be analyzed.

Did the Trial Court’s Error Cause Harm?

A trial court’s error supports a reversal only when one of the following factors applies:

  • It likely led to an improper judgment.

  • It likely interfered with the appellant’s ability to present the case properly to the appellate court.

The appeals court must review the error’s impact on the trial court’s final judgment or on the appellate court’s review.

Failing to interview a child who qualifies to be interviewed generally leads to the improper exclusion of their testimony. In this case, the Supreme Court found that the trial court’s error caused the mother to suffer both of the following distinct forms of harm:

  • Her daughter’s testimony was incorrectly excluded.

  • The mother gave up “her right to a jury based on a false premise.”

The Consequences of the Error

The Supreme Court stated, “When a trial court errs, the error’s consequences may ripple beyond its effect on the proceedings at the moment the error is committed.” The error can go on to undermine foundational decisions made in reliance on the trial court acting in accordance with the law.

When a litigant like the mother in this case bases their factfinder selection – whether bench trial or jury trial – on a false premise, the reviewing court must consider what was given up in the reliance on the law being upheld.

The Mother's Reliance

To sum things up, the mother was entitled to her reliance on the trial court following statutory mandates about interviewing her daughter – and the court’s policy backed her reliance up. The trial court was in error when it declined to interview the teenage daughter as required by statute. In her reliance on the law, the mother gave up her factfinder of choice (a jury) in support of her daughter being interviewed in chambers.

The Court found that the mother’s preference for a jury trial was well established and that she specifically gave up the right in order for her daughter to be interviewed. When the error made by a trial court causes a party to lose their right to a jury trial, it’s considered harmful if the jury had material fact issues to resolve.

The Wrong Decisionmaker

The Court made the following important point: “When the wrong decisionmaker makes factual determinations, the resulting judgment is improper. Therefore, when a suit involves material disputes of fact that are erroneously resolved by the court rather than by a jury, the judgment is improper and reversal is appropriate.”

The mother lost the opportunity for a jury to resolve the disputes in her case, which caused her harm.

What Is the Appropriate Remedy?

Finally, the Supreme Court turned to the appropriate remedy for the harm the trial court’s error caused the mother. To begin, because the matter relates to the parent-child relationship, it is time sensitive. Further, with the passage of time, the relevant circumstances could change, which might lead to the need for a new trial.

In this case, however, the mother sought a reversal of the case – to be returned to the trial court for compliance with the interview requirement. In response, the Supreme Court took all of the following actions:

  • Reversed the portion of the judgment that afforded the father the exclusive right to designate the oldest daughter’s primary residence

  • Remanded the case back to the trial court to conduct the interview originally requested

  • Required the trial court to issue an amended judgment on the issue of primary residence

In Conclusion

Parents have important rights, but protecting them can prove exceptionally challenging. In this case, the mother’s right to have her daughter interviewed in chambers regarding her primary residence preferences was thwarted. For the matter to be properly addressed, intervention by the Texas Supreme Court was required.

Here, the mother gave up her right to a jury trial in order for her oldest daughter to be interviewed in chambers. In the process, she was denied her factfinder of choice (a jury) and the interview she sought. The Court determined that this amounted to harm, and the case was returned to the trial court, requiring the long-sought interview and an amended judgment in response.

An Experienced Round Rock Family Law Attorney Is Standing By to Help

Child custody matters are especially challenging, and because they affect your relationship with your children, they also tend to be fraught with emotion. Texas courts recognize that as children age and mature, they have preferences regarding child custody that they should be allowed to share in chambers and that the involved judge should take seriously. When this right is ignored, it can lead to damaging consequences that shouldn’t be ignored.

Brett Pritchard at The Law Office of Brett H. Pritchard in Round Rock, Texas, has a wealth of experience fiercely advocating for his clients’ parental rights, and he’s here for you, too. Learn more by contacting us online or calling us at (254) 781-4222 and scheduling your FREE consultation today.

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