Don’t Like Your Judge? Consider a Change

Although we tend to put judges on a pedestal, we need to remember that judges are people too. Outside of the vacuum of the Domestic Relations Division, family law judges attend social events, enjoy the outdoors, and participate in occasional club or organization meetings. That is why there are rules in place to ensure that these outside forces and interests do not penetrate your case’s bubble in the interest of fairness and impartiality. Here, we discuss the different ways that you can substitute your judge and the different scenario’s where each rule applies.

When Can I Substitute the Judge in My Divorce When I Do Not Have a Specific Reason for Doing So?

When Can I Substitute the Judge for My Divorce When I Think my Judge is Biased Against Me?

Substituting Your Judge ‘For Cause’

“opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source, and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” [510 U.S. 540, 541 (1994)]

To give parties an understanding of what this means, we can turn to the facts of the Illinois case In re C.M.A. In that case, which was a consolidation of appeals arising out of two separate adoption cases, the Judge was removed for cause under 2–1001(a)(3) because she based her decision on one adoption off of evidence of the other adoption, she didn’t question the witnesses about the minor child or his case and welfare but questioned the petitioner regarding her “coming out” process as a lesbian, her early sexual experiences, and whether the petitioners were currently in a lesbian sexual relationship. That same judge then issued an order adding a new party to the case, who was on public record for the position that persons living homosexual lifestyles are not in the best interest of the children. Under these circumstances, the court determined that the judge’s conduct met the high degree of antagonism as to make fair judgment impossible and the judge was removed for cause under 735 ILCS 2–1001(a)(3).

What Other Circumstances Can Arise Requiring Substitution?

  • a party or interested in the action,
  • his or her testimony is material to either of the parties to the action, or
  • he/ she is related to or has been counsel for any party.

In these cases, the judge may be substituted with or without a party bringing the issue before the court. 735 ILCS 2–1001(a)(1)

The second scenario relates only to a defendant in a contempt proceeding arising from that defendant’s attack of the judge’s character or behavior outside of court. If the proceeding is pending before the judge whose character or conduct was attacked, the party will fear that he or she will not receive a fair or impartial trial before that same judge. 735 ILCS 2–1001(a)(4)

When are Judges Required to Remove Themselves?

If you are going through a divorce or family law case and you want to know whether substituting your judge should is right for your case, be sure to seek experienced legal advice. Feel free to contact Anderson & Boback today to schedule a confidential consultation. Our team of experienced and top-rated family law and divorce attorneys will help you make the right choices.

THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/illinois-divorce/dont-like-your-judge-consider-a-change/

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