03 Dec 18

Can I request a new judge for our custody case?

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When two divorcing spouses disagree about the custody of their children, the divorce can quickly turn acrimonious and hostile. Battles between the spouses tend to be heated. In many cases, a divorcing spouse may feel that the judge has a leaning toward one parent or another. Without proof, though, nothing can come of this suspicion.

If you want a new judge to preside over your custody case, you need proof that your current judge is biased toward one of the sides. When judges show favoritism, the favored party doesn’t tend to complain. It’s the non-favored party who feels as though they’re being cheated. Putting judicial favoritism into words and documenting it is a daunting task. You may think you saw the judge smirk or subtly glare, but these little cues aren’t enough to prove bias. Unless you have well documented proof of bias, the court might believe you’re acting childishly.

Judges Aren’t Always Impartial

It’s true that judges go through a very difficult selection process. If the world were perfect, all judges would act with perfectly fair and impartial conduct. However, judges are human beings. Human beings are capable of making mistakes or having bias, sometimes unconscious bias.

There have been some cases where the judge has a conflict of interest. They know the family member of one of the spouses, or one of the spouses’ close friends. Their outside third-party knowledge of the case has tainted their ability to objectively consider the facts. Judges are supposed to refuse cases that include conflicts of interest, but this doesn’t always happen.

You don’t always know what’s happening behind the scenes. If you’re struggling to be heard in your custody battle, you feel like the judge is biased against you without cause, and you aren’t sure where to turn, be aware that you can take some steps. You should also be aware that these are drastic steps that, if handled poorly, could have catastrophic ramifications for your case.

These are the steps to follow if you want a new judge presiding over your case.

First: Talk to your attorney.

Your attorney is experienced in navigating all aspects of the divorce court. They may be familiar with the judge already. If you believe the judge is biased, talk to your lawyer about it. Give all the details you can regarding the reasons you believe there has been bias. In cases where the judge is unduly favoring one party, the attorney will also have noticed signs. Between the two of you, you can document everything about the judge’s behavior and unfair rulings.

Second: Go on a fact-gathering mission.

If you’re trying to have a judge recused, you need to have concrete proof that wrongdoing occurred. Believing that a judgment call was unfair is not enough to constitute proof. There are hundreds of divorce cases every day with rulings that one or both spouses believe are unfair.

You need something concrete enough to convince people that you aren’t biased. Many people will be predisposed to believing you’re just angry about not getting what you want in court. If you find a connection between your judge and your spouse, that can be grounds for recusing. It’s vital that you have unquestionable documentation supporting your motion.

Third: File your motion for requesting another judge.

You’ll need to request another judge by filing an official motion. The motion needs to include all the details about why your current judge must not preside over the case. If the judge reads the motion and agrees that there has been bias, they may voluntarily leave the case. However, the judge is not required to leave voluntarily.

In cases where the judge chooses to ignore the motion, you’ll need to make an official request to the court. When this is the case, copies of the relevant paperwork will need to be given to all involved parties. If the court feels the proof is sufficient, they can remove the judge. With that said, the court doesn’t have to grant your request. If your motion is overruled, the original judge will continue to preside over the case, and they may bear ill will toward you.

Fourth: Face the outcome.

If your motion to recuse the judge fails, you will have really given them a reason to be biased against you. This might result in you being punished in the custody battle.

Alternatively, if a new judge presides, you may find yourself being issued a much more fair ruling.

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