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Parental Rights

Texas Juries Decide Child Custody Cases

Eugene Volokh | 5.23.2026 1:39 PM

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........

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