Texas Divorce Attorney Blog
When parents are going through a custody dispute, it can be difficult to understand what role the judge and jury play in the custody award. A question that arose in a recent Texas Supreme Court case was: if a jury decides that the children should primarily live with one parent, can a judge still give the other parent more time with the children? The court addressed the issue and clarified that a judge cannot use a possession schedule to effectively override the jury’s decision about which parent will have the children’s primary residence. Gopalan v. Marsh, No. 25-0161, slip op. at 12–13 (Tex. May 22, 2026).
The Facts of the Case
The case arose from the divorce of Prabhakar Gopalan and Andrea Marsh following their nine-year marriage. The parents agreed to joint managing conservatorship of their two children, but they disputed the allocation of parental rights, possession, and other issues concerning the children. After a five-day jury trial, the jury determined that Gopalan should have the exclusive right to designate the children’s primary residence within Travis County.
The trial court adopted that jury finding but entered a possession schedule that gave Marsh approximately 57% of the children’s time. The court also awarded Marsh the majority of exclusive parental rights, monthly child support, and conditional appellate attorney’s fees.
Gopalan challenged the possession schedule, arguing that the trial court could not award Marsh more possession than the parent whom the jury had selected to designate the children’s primary residence. The Austin Court of Appeals affirmed, concluding that the decree did not contradict the jury’s verdict because the Texas Family Code does not require the parent with the primary-residence designation to receive more possession time.
The Texas Supreme Court granted review to resolve a conflict among Texas courts of appeals concerning the meaning of “primary residence.”
What Does “Primary Residence” Mean Under Texas Law?
Texas Family Code § 105.002 provides that, in a jury trial, the court may not contravene the jury’s verdict concerning which joint managing conservator has the exclusive right to designate the child’s primary residence. The statute separately provides that specific terms or conditions of possession are matters for the trial court rather than the jury. (Tex. Fam. Code § 105.002(c)(1)(D), (c)(2)(B)).
The Supreme Court held that these provisions must be read together. Although the jury does not determine the precise possession schedule, its determination concerning the child’s primary residence places a general constraint on the trial court’s authority when establishing that schedule.
The Court relied on the ordinary meaning of “primary residence,” concluding that it means the home where the child actually lives most of the time. A residence where the child lives less time than elsewhere cannot ordinarily be considered the child’s primary residence.
The Court therefore held that the trial court infringed upon the jury’s verdict by awarding Marsh greater possession time than Gopalan. The Court reversed and remanded the possession order for reconsideration.
What Does this Decision Mean?
The decision does not mean that the parent with the primary-residence designation automatically becomes the “primary parent.” The Supreme Court expressly rejected that terminology, emphasizing that Texas law continues to encourage parents to share the rights and responsibilities of raising their children.
The ruling also does not prohibit equal possession schedules. Texas Family Code § 153.135 expressly provides that joint managing conservatorship does not require equal or nearly equal periods of possession, which the Supreme Court explained necessarily permits equal possession arrangements in appropriate circumstances.
If You Have Questions About Conservatorship or Possession Issues in Dallas, Contact McClure Law Group
Custody issues in Texas are complex. It can be challenging to understand the distinction between conservatorship, the right to designate primary residence, and possession, and how these apply in your situation. McClure Law Group assists Dallas families in addressing these issues and evaluating how a jury verdict or possession order may affect the final custody arrangement. Call our child custody attorneys at (214) 692-8200.