Are you thinking about a Disqualification or Recusal of a Judge, Referee, or Support Magistrate in your divorce case? Judicial impartiality is a significant element of justice. Judges should decide legal disputes free of any personal bias or prejudice. As a result of a conflict of interest, a judge may be unable to maintain impartiality in a case and thus should be disqualified. Even where a judge is impartial but appears not to be, recusal is necessary. To promote the goal of judicial impartiality, most
states have adopted the American Bar Association’s Model Code of Judicial Conduct.’The Code prescribes disqualification for judges who recognize the existence of a conflict of interest, or who encounter allegations of a conflict of interest in a motion to disqualify.
There Are Two Ways to Request Disqualification or Recusal of a Judge
1. Peremptory Challenge
• In a family law case, you may automatically disqualify ONE judge without proving prejudice or bias.
a. If you have a temporary judge, you can refuse to sign a stipulation for the temporary judge in your courtroom.
• A new judge is assigned when a peremptory challenge is granted.
• Peremptory challenge is denied, the judge will remain on your case.
• To raise a challenge, file an Affidavit of Prejudice Peremptory Challenge to Judicial Officer.
• Your judge is known at least 10 days before the hearing date, you must make your motion at least 5 days before that date. In order to avoid missing the deadline, file your motion as soon as your trial judge is assigned.
• If assigned a different judge for trial, make a motion as soon as the new judge is assigned.
• Have a copy of the affidavit served on the other party no later than 5 days after making the motion.
2. Challenge for Cause
• A judge may also be challenged for cause.
• This type of motion is less likely to be granted. It is because specific grounds and proof are required. For example conflict of interest, bias, financial interest, personal knowledge of facts, and relationship to a party or attorney.
• Challenge is denied, and the judge will remain in your case.
• When raising a challenge, file a written declaration, using pleading paper, that sets forth the grounds for disqualification.
• The challenge must be raised with the clerk in the assigned department. It is important that it is “at the earliest practicable opportunity” after discovering grounds for disqualification, or else it is waived. Have a copy served on the other party/attorney, and a copy personally served on the judge or clerk.
A litigant may not bring a peremptory challenge or a challenge for cause after orders made in a case!
There is a saying I live by when it comes to recusal or disqualification. “If you are going to overthrow the king, you have to kill the king.” When you are going to seek recusal or disqualification, you better win. If you don’t, that Judge will be the one deciding your fate with respect to the rest of the case. Get my drift?
Appellate Courts have held that the trial court is the sole arbiter of the need for disqualification or recusal absent legal disqualification under judiciary law §14. For a litigant to have a Judge, Referee, or Support Magistrate recused or disqualified, you must demonstrate court bias or prejudice. The Appellate Court will not overturn the decision. The only way is if the Appellate Court finds that the court’s denial of recusal or disqualification was not a proper exercise of discretion.
Suffolk County Family Court
In Suffolk County Family Court, when assigned a Referee for a custody or parenting time matter there are two choices. You can either consent to the case remaining before that Referee or you can request a Judge to hear your case. Both parties must consent to that Referee or the case will go before a Judge.
It is always advisable to get legal advice from an attorney of your own choosing when dealing with a divorce or Family Court matter. Your attorney’s initial primary function is to advise you as to what is in your best interest now and in the future. What a friend may tell you from his or her experience, or what happens in a television show, is not necessarily in your best interests. An experienced attorney with a strong legal background in matrimonial and family law, such as Phillip J. Jusino, is better able to help you.
Do you need legal representation concerning a divorce or Family Court matter? I invite you to contact my office to set up a free consultation by calling 631-588-3155. We have been handling divorce and Family Court matters for over 33 years here on Long Island. Check out Phil Jusino’s book about divorce and family law titled Divorce: A Practical Guide. Purchase the book on Amazon.com today!