Can You Request a Different Judge in Family Court?

Family court

The short answer is “yes” if you are asking for the right reasons.

Asking a judge to remove him or herself from a case is called a “recusal.” A motion for recusal must be filed with the judge you are seeking to remove from the case, so such a request should really be made only sparingly and with a legitimate basis. There are certainly family lawyers who have no issue with asking for a judge’s recusal on a client’s behalf, but it is a very serious decision that should not be taken lightly because you do not want to spoil any goodwill or unnecessarily taint your position in the court’s eyes.

Procedurally, seeking a judge’s recusal requires that you file a motion with the Court asking for such relief. Alternatively, a judge may voluntarily recuse him or herself. One example of a situation that may call for a recusal is when a judge has a personal relationship with your soon-to-be ex-spouse. This scenario is obvious as the judge clearly enjoys a close personal relationship with one party over the other that may inhibit his/her ability to oversee the case in a fair and unbiased manner. There are also plenty of insufficient reasons for a judge to recuse themselves. For instance, being merely dissatisfied with a judge’s decision in your case is not enough in and of itself. Similarly, your motion will also very likely be denied if you allege the judge does not like you for whatever reason you conceive in your paperwork.

Court Rule 1:12-1 provides a non-exhaustive list of reasons for a judge to be disqualified from hearing a case. Those reasons are as follows:

(a) is by blood or marriage the second cousin of or is more closely related to any party to the action;

(b) is by blood or marriage the first cousin of or is more closely related to any attorney in the action. This proscription shall extend to the partners, employers, employees or office associates of any such attorney except where the Chief Justice for good cause otherwise permits;

(c) has been attorney of record or counsel in the action;

(d) has given an opinion upon a matter in question in the action;

(e) is interested in the event of the action;

(f) has discussed or negotiated his or her post-retirement employment with any party, attorney or law firm involved in the matter; or

(g) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.

Subsections (a) through (f) are self-explanatory, but what about subsection (g)? What are “other reasons” and what kind of circumstances would lead a court to decide that this subsection applies? In answering this question, courts determine if “an individual who observes the judge’s personal conduct ha[s] a reasonable basis to doubt the judge’s integrity and impartiality.” In re Reddin, 221 N.J. 221, 223 (2015).

In the case of P.M. v. N.P., 441 N.J. Super. 127 (App. Div. 2015), the wife’s attorney filed a motion for recusal after the judge’s law clerk accepted a job with THE husband’s attorney’s firm. The wife’s attorney also raised the issue of a familial relationship existing between the judge and the same law clerk (triggering R. 1:12-1(b)). The wife’s attorney asked the judge in multiple letters and in a motion to clarify the familial relationship that existed between him and his law clerk. The judge initially ignored the question. At oral argument, the wife’s attorney again asked the question. In denying the recusal motion, the judge answered that he had read the guidelines and indicated his law clerk had did not fall into any prohibited “category” meriting recusal.

The Appellate Division commented that the judge’s response was “at best . . . needlessly evasive; at worst, it was unacceptably calculating.” Additionally, the judge was deemed unresponsive to inquiries about whether the law clerk substantially participated in assisting the judge with the case after husband’s counsel had contacted the judge regarding hiring the law clerk. These two problematic facts were part of the Appellate Division’s decision to vacate the trial judge’s order and remand the case back to the trial judge to answer the questions regarding: (1)

the familial relationship; and (2) what the exact timeline was for husband’s counsel employment discussions and employment offer.

What, as a result, does this mean for you as a litigant. While you can request a different judge in family court, the outcome of your request will depend on whether situation falls within one of the Rule 1:12-1 subsections.

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