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substitute your judge divorce family law

Don’t Like Your Judge? Consider a Change

Categorized as Illinois Divorce, Illinois Family Law

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?

Each party in the divorce proceeding is entitled to one substitution of judge without cause as a matter of right so long as they meet the basic requirements. Without cause present, the party’s motion to the court cannot be filed to delay or avoid trial and/or if the judge has already made a substantial ruling in your case. A substantial ruling is a ruling that relates to the merits of the case and could include, but is not limited to, rulings on motions to dismiss, rulings on pretrial issues and/or motions for summary judgment. In Illinois, the basic threshold requirements remove all discretion from the procedure and require the judge to grant the motion if it is timely. 735 ILCS 5/2-1001(a)(2)

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

If a party in a divorce proceeding believes that their presiding judge is biased against them then they may be able to substitute their Judge for cause. As described in the Illinois divorce case In re Marriage of O’Brien, Judges are presumed to be impartial, so it is the burden of the charging party to prove that they have cause to substitute the judge. Although the statute does not define “cause,” Illinois courts have held that in such circumstances, actual prejudice has been required to force removal of a judge from a case, that is, either prejudicial trial conduct or personal bias. When determining actual prejudice, the party seeking substitution must show that the specific, actual prejudice stemmed from an extra-judicial source which results in an opinion on the merits on some basis other than what the judge learned from this particular case.

Substituting Your Judge ‘For Cause’

Substituting a judge for cause has a very high burden and often requires substantial supporting evidence. According to the Supreme Court of the United States, as cited in Liteky vs. United States:

“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?

Under the Illinois statute, there are two other situations where you can substitute a judge in your case. The first scenario is when the judge is

  • 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?

Judges may recuse themselves if there may be a potential personal bias or other personal involvement in the case without either party bringing an issue to the court’s attention. A judge is required to disqualify himself/herself if the judge’s impartiality might be reasonably questioned. The law lists certain circumstances where disqualification is mandated i.e. where a judge has an interest in the proceeding, when a judge is a party to the proceeding, when the judge has served as counsel for any party or when a judge may be a material witness. Illinois Supreme Court Rule 63(c)

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 & Marshall 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.

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