Shearman And Sterling

News June 12, 2023

Shearman & Sterling Secures Unanimous Pro Bono Victory in Texas Supreme Court

Victory Ensures Interview Rights Protected for Children in Custody Battles

On Friday, June 9, Shearman & Sterling secured a unanimous 8-0 victory in the Texas Supreme Court on behalf of its pro bono client. This decision guarantees that, in determining custody, the trial court will interview our client’s eldest daughter—as Texas law requires.

In a custody dispute between divorcing parents, Texas law provides the parties with the right to a jury trial. It also requires a trial judge, when conducting a bench trial, to interview a child at least 12 years old in chambers to determine where she wants to live. Although our client initially demanded a jury trial, she then withdrew that request to obtain an interview for her then-13-year-old daughter, testifying that she thought it was critical that the court hear from her daughter. But the trial judge refused to conduct the statutorily required interview. The Texas Court of Appeals held that the trial judge erred in refusing to conduct the interview but excused the error as harmless. This was nothing new. In almost a dozen cases, no appellate court had ever found the failure to conduct the mandated interview harmful error.

Nonetheless, Shearman & Sterling successfully petitioned the Texas Supreme Court for review. At the Texas Supreme Court, Shearman & Sterling argued that it was grossly unjust that our client traded her constitutional right to a jury in exchange for an in-chambers interview of her daughter only to receive nothing in return and then be told the error was harmless. The Texas Supreme Court agreed, holding that, when there are material factual disputes and a parent gives up her jury-trial right to secure the interview, a failure to conduct the interview is harmful. The Court reasoned that the inability to have the factual issues presented to the preferred finder of fact based on a false promise required reversal.

This is a major victory that vindicates our client’s constitutional and statutory rights and ensures that her daughter’s voice will (finally) be heard in the custody dispute. It also ensures that other litigants and children facing a similar situation in the future will have their interview rights protected—which has not been the case to date.

This matter was referred by DV Leap, a project of the Network for Victim Recovery, DC. The Texas Advocacy Project made two amicus filings in the matter in support of our client’s position as well.

The Team


Regional Experience