How to Request a New Judge in a Family Law Case
By Beverly Bird
Updated December 14, 2018
Deborah Cheramie/iStock/Getty Images
Unfortunately, getting a new judge appointed to your family law matter is a lot like making an elephant move from one side of the room to the other. If he doesn’t want to go, you’re not likely to be able to push him on your own. You’ll need the full force of the law behind you and that may be hard to come by unless you have specific and indisputable grounds.
Assignment of Judges
How you end up with a particular judge in your family law case depends on your state's laws, but judges are typically assigned on a set rotation. The same judge often deals with everything in a case from the initial motions through the trial. North Carolina calls this the “One Judge, One Family” rule. You may be aware right from the start that there’s a potential problem because you and the judge have a personal conflict, or you may not realize it until you appear in court and the judge consistently rules against you. By then it may be too late to remove him from the case. Some states won’t let you do so after your case is underway.
Grounds for Request
In most states, you must have specific grounds for having your judge removed and replaced by another. It’s possible in North Carolina if he has a personal connection with you, your ex or someone else in your family. You may be able to request the judge's removal on the grounds that he has a financial interest in your case, such as because he’s made an offer on the home you’re hoping to sell as part of your divorce. Arizona is a bit more generous – you can allege almost anything you think might make him biased against you, but you’ll have to prove your allegations. You have the most leeway in states like California that allow you to object to the judge assigned to your family law case without proving grounds. This is called a peremptory challenge, but you can only do it if you haven’t yet appeared before that judge for any reason.
Motion to Remove
If you have grounds, your next step is to file a motion or petition with the court, officially requesting a new judge. Even in states like California, your peremptory challenge must be incorporated into a formal motion. Most states do not have preprinted forms for this because it’s not a common issue, so you may need the help of an attorney. You can ask the judge to remove or “recuse,” himself, citing your grounds, and he might do so if your reasons are sound. You can also ask the court to order a replacement judge if he doesn’t voluntarily recuse himself. When you file your motion, you must serve a copy of the paperwork on your spouse.
If All Else Fails
If the court denies your motion for a new judge or if you fail to act in time, you’re most likely stuck with the judge assigned to your case. All may not be lost, however.
If he honestly has some grudge against you that you just can't prove, you may be able to pull the plug on the matter rather than proceed and end up with an unfair result. If you filed the complaint or petition to begin your family law case and your spouse has not yet filed a counterclaim, you can dismiss your case and refile unless time is of the essence, such as it might be with a custody order. Your matter might be assigned to a different judge the next time, although the odds of this happening depend on the number of judges on the bench in your particular county. The fewer judges, the more likely you are to end up with the same one.
Make absolutely sure that your spouse hasn’t filed a counterclaim before you voluntarily dismiss your case, and consult with an attorney as well. If your spouse has filed a counterclaim before you have dismissed your petition, the case will proceed uncontested as though you don't object to anything your spouse is asking for. The result might be even worse than having a biased judge.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.