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Sample Voir Dire Questions and Sample Jury Charge – Custody

The McNamara Law Firm has recently tried two relocation cases representing the non-custodial parent. In these cases, the custodial parents remarried and sought to modify the geographical restriction so they could move with their children to live with their new partners. Our office relied on the latest social science to persuade the court not to lift the geographical restriction. In both relocation cases, the jury denied the custodial parent’s petition to lift the geographical restriction.

This post will be broken into two parts. The first part will discuss the latest social science regarding the geographical restriction. The second part will look at important segments of the trial process in relocation cases: voir dire and the jury charge.

Today’s Social Science

In a paper presented at a National Family Law Conference, the authors explained that the social science of a couple decades ago taught that “a child’s best interests is closely linked to the best interests of the custodial parent.” (“Relocation: Long Distance Families,” page 5.) This widespread belief resulted in many custodial parents moving to raise their children a long distance from the non-custodial parent. In contrast, the social science of today concludes that “having two parents in close proximity is better for children regardless of other factors” (Id., page 11). Texas codified this this modern approach: “The public policy of this state is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.” Texas law accomplishes this goal by making “joint custody” the default parenting designation and by setting and enforcing a geographical restriction against the custodial parent.

The social science of a couple decades ago is credited to Judith Wallerstein. (See her article published in Family Law Quarterly, “To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce.”) “Wallerstein claimed that there was no evidence that frequency of visiting or amount of time spent with the non-custodial parent over the child’s entire growing-up years was significantly related to good outcome in the child or adolescent.” Rather, “the children’s relationship with only one parent was central to their welfare.” (Richard Warshak, “Social Science and Children’s Best Interests in Relocation Cases: Burgess Revisited,” Family Law Quarterly.) The first study contradicting the Wallerstein position came from Arizona State University in a 2003 article titled “Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations.” The study showed that college students with divorced parents living a long distance away were “significantly” disadvantaged compare to college students with divorced parents who lived near each other.

Since 2003, the research supporting a child’s need for both parents has grown. Dr. Richard Warshak, one of Bill’s favorite authorities researching family law issues, recently co-authored an amicus brief to the Supreme Court of California. Below are some of the notable conclusions Warshak and the new social science make.

At five years [the] positive contribution of the father’s role emerged with clarity. Specifically, good father-child relationships appeared linked to high self-esteem and the absence of depression in children of both sexes and at all ages. We were interested to find this significant link in both sexes up to and including those in the thirteen-to-twenty-four age group. (page 7)

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It is noteworthy that the divorce appeared not to diminish the importance of the psychological link between father and child. This connection was especially obvious at the five-year mark in those children who were between nine and twelve, or entering adolescence. Children in this age group took intense pleasure in the visiting and when they were not visited they grieved. It seemed possible, in fact, that in this nine-to-twelve-year-old group the visiting father might sustain a youngster even in the care of a disorganized mother. (pages 7-8)

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Aside from pleas to reunite their parents, the most pressing demand children brought to counseling was for more visiting. . . . The intense longing for greater contact persisted undiminished over many years, long after the divorce was accepted as an unalterable fact of life. (page 9)

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It is not contact, per se, that is important, but rather other dimensions of involvement that go along with contact that are beneficial to children’s lives. Indeed, contact may be a mixed blessing if the contact is enough to tantalize children but not enough to satisfy. . . . Nonresidential parents who maintain parental roles (providing guidance, discipline, supervision, and educational assistance) may affect their children more profoundly than those who are limited to functioning as occasional visiting companions. (pages 15-16)

Hire an Expert

To get the above social science evidence before the jury or judge, you should hire an expert witness to educate the jury or judge about what is in the best interest of the child.

Jury Questions and Sample Jury Charge

Here is an outline of juror questions that Bill uses in relocation cases.

“Never leave a lawyer on your jury.” –Bill’s practice tip in jury selection

Here is a sample jury charge for a relocation case.

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The Marital Estate: Community Debts

In Texas, “Community Debts” Do Not Exist

Property acquired during marriage is generally community property. However, debts acquired during the marriage are not community debts. In fact, “community debts” do not even exist in Texas. Tedder v. Gardner Aldrich, LLP, 421 S.W.3d 651, 654 (Tex. 2013), reh’g denied (Dec. 13, 2013). According to the Texas Supreme Court, the idea of a “community debt” is problematic because courts can mistakenly use it to assign liability to a spouse who did not incur the debt. Id. In Texas, spouses cannot be jointly liable for a debt under a community property theory. Id.

The Spouse Who Incurs The Debt Is Liable For The Debt

Rodgers v. Rodgers, 07-12-00282-CV (Tex. App.—Amarillo Apr. 17, 2014, no. pet. h.) illustrates this point.

When Kenneth and Mary were married, Kenneth took out a loan to buy tools. While their divorce was pending, however, Mary sold the tools but did not use the money to pay off the debt. In the Final Decree of Divorce, the trial court assigned the debt solely to Kenneth.

The Amarillo Appellate Court affirmed, reasoning that (1) the trial court had not made any findings of fact and conclusions of law, and (2) the trial court made its ruling in light of a myriad of other factors.

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Divorce Myth: Courts Often Do Not Divide Property 50/50

One Shot at a “Just and Right” Division of Community Property

Laypersons often believe that a court will divide the marital estate 50/50. However, courts often do not divide marital property equally. One prominent Texas case illustrates this point. In 1981, the Texas Supreme Court heard the Murff case. Murff v. Murff, 615 S.W.2d 696 (Tex. 1981). In Murff, the appellate court overturned the trial court’s division of the marital estate. The Supreme Court, in turn, reversed the appellate court’s ruling and affirmed the trial court’s division of the martial estate:
“The trial court in a divorce case has the opportunity to observe the parties on the witness stand, determine their credibility, evaluate their needs and potentials, both social and economic. As the trier of fact, the court is empowered to use its legal knowledge and its human understanding and experience. Although many divorce cases have similarities, no two of them are exactly alike. Mathematical precision in dividing property in a divorce is usually not possible. Wide latitude and discretion rests in these trial courts and that discretion should only be disturbed in the case of clear abuse.”
Because trial courts have such wide discretion, trial court rulings are usually not overturned in family law matters. One important lesson, then, is to secure the desired results at the trial court level.

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Special Appearances: Personal Jurisdiction in Divorce

The question of jurisdiction may arise when divorcing spouses live in different states. If one spouse does not want the divorce proceedings to take place in Texas, she may challenge Texas’ jurisdiction under section 120A of the Texas Rules of Civil Procedure. If the court denies the motion for special appearance, then the judge will sign an Order Overruling Plea to the Jurisdiction.

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Video Recording of Child’s Testimony

Entering the Child’s Testimony into Evidence

A lawyer has a couple options when entering a child’s testimony into evidence without calling the child to the witness stand. The lawyer may call the child’s counselor to the witness stand, or the lawyer may videotape the child. To learn more about admitting the testimony of the child’s counselors, see our prior post here.

Videotaping the Child: Requirement of Administering an Oath

The Amarillo Appellate Court recently affirmed a trial court’s decision to strike from evidence a child’s videotaped testimony. Nichol v. Nichol, 07-12-00035-CV, 2014 WL 199652 (Tex. App.—Amarillo Jan. 15, 2014, no. pet. h.). Although the trial court granted the father’s “Motion to Prerecord Testimony of the Child,” the same court ruled the videotape to be “inadmissible hearsay because no oath was administered and no preliminary questions were asked of the child which would indicate he understood his testimony was to be truthful.”

Section 104.003(a) of the Texas Family Code states that “the court may, on the motion of a party to the proceeding, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court, the finder of fact, and the parties to the proceeding.” Implicit in the word “testimony” is the requirement that an oath be taken. This is seen in Rule 603 of the Texas Rules of Evidence: “before testifying, every witness is required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.”

In the Nichol case, the father’s attorney questioned the child without first administering an oath or having a discussion “about the issue of truthfulness.” Because the child was not made aware of his duty to be truthful, the trial court did not err in excluding the videotaped testimony.

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