How to Get a New Judge to Hear Your Divorce Case in California
"Help! My judge clearly has different religious or ethical views than I do. How can I get a new judge to ensure my hearing is unbiased?"
This can be a tricky one. There are some ways to work around this, but you've got to act with prudence because you only get two (realistic) chances to get this right.
Do your homework before the petition is filed
In California, you must file for divorce in the county where you or your spouse have lived for the preceding three months. If you've moved out of the marital home and now find yourself living in a conservative county, whereas your spouse lives in a progressive county, that can help you decide where to file. Filing where the politics are more in your favor could help you get a judge more sensitive to your case.
Decline your Commissioner
After you file, your case will be automatically assigned to a judge or a commissioner. (The basic difference between the two: a judge is elected, and a commissioner is hired by the court to help with the judge's caseload. A commissioner is usually a licensed attorney, and in some cases may even have more experience than a judge. A commissioner has the same power as a judge to issue legally binding judgments.) You have the right to file a challenge, or verbally tell the court that you do not agree for your case to be heard by a commissioner. This is one way to change the person hearing your case.
File a Motion for Disqualification
As soon as your judge is assigned, start Googling. Learn all you can about this judge. Does this judge belong to your ex's country club? Does this judge clearly hold religious or ethical views that have influenced judgments on other cases? If what you learn is strong enough evidence to you (and to your lawyer), you can consider filing a Motion for Disqualification. If you file this motion within 10 days of being assigned a judge, there typically are no questions asked. You or your lawyer will file paperwork that gets routed to the presiding judge, and you'll be assigned a new judge. Keep in mind: you only get one "freebie" and can only use this tactic once. So, weigh this option carefully.
Disqualifying Judge #2
If you don't like the judge you've been reassigned to, and want to request another new judge, this is where things start to get tricky. You must file a Motion for Disqualification, but this time it will escalate to a hearing. It's possible that your request could be denied and you may still have to appear before the judge you've tried to disqualify. Ideally, a good judge will set aside any hard feelings and rule solely on the facts in your case. But, judges are human, and this isn't necessarily guaranteed.
Appeal to a higher court
If you stick things out with Judge #2 and do not approve of their ruling, you can consider taking your case to a higher court, which can overrule Judge #2's ruling. But, family law orders can be very difficult to appeal, because you cannot appeal something a judge ruled on at their discretion. Your best option for appealing to a higher court is to demonstrate that the judge did not follow the law or procedure.
- Your judge denied child support without considering either party's finances. This might be considered appealable because the judge did not look at all of the facts.
- Your judge denied child support because she feels the father is underemployed. This probably would not be considered appealable, because the judge looked at the facts, but used her discretion to rule based on those facts.
File a complaint
If your judge has engaged in extremely egregious, unlawful behavior, you can speak with your attorney about filing a judicial complaint. Instances of this would be extremely rare, and this tactic is not recommended. Instead, you may choose to file an appeal or motion for reconsideration. Then you can address the bad ruling without running the risk of continuing to appear before a judge you've made a complaint about. So, in a nutshell: yes, you can seek out a different judge to hear your case, but you need to weigh the decision carefully because your opportunities to make this change are extremely limited.
Have Questions About the Divorce Process? Need Help?