Umpires are supposed to call balls and strikes consistently for both teams. Referees should throw penalty flags without thinking about which side will benefit. So, too, judges in family court should apply the law evenly and examine evidence without prejudice. Unfortunately, none of these arbiters are perfect, and many issue rulings that raise questions about their competence and impartiality. You're entitled to gripe when your favorite team gets the short end of a bad call. But in family court, you’re more than a fan in the stands. Your future rides on the judge’s decisions. So, when you start to see a pattern of adverse rulings that suggest the judge is biased against you, you have to do more than grumble. You might even think about removing the judge from your case.
In New York Family Court, changing judges is a tall order. The title “Your Honor” comes loaded with presumptions of personal and professional integrity. If you want a judge to voluntarily recuse him/herself, or for someone higher up to make a switch, you’re going to need firm evidence of conflicts of interest.
Criteria for Changing Judges in New York Courts
If you want to get a different judge, it’s generally easier to do so at the start of proceedings. It also allows you to preempt the unfair treatment you anticipate getting. You can request a new judge if the situation suggests a conflict of interest, such as:
- A prior personal or professional relationship with the opposing party
- A financial or personal interest in the outcome of the case
If you wait until proceedings are underway, a judge is likely to be more resistant for a couple of reasons:
- A change would put the incoming judge at a disadvantage
- A change would reflect badly on the judge for not recusing him/herself voluntarily at the outset
Unfortunately, solid grounds for recusal might not exist, and you might only realize you have a biased judge after a few head-scratching, adverse rulings. In this case, you’d better hope your attorney has experience dealing with an unfair judge in family court, and knows how to mitigate the potential damage to your case.
It might be that you made a poor first impression. Maybe you were late to court, or the judge perceived you had a “bit of an attitude,” so you got off on the wrong foot. Accusing a judge of bias at this point would only make matters worse. An experienced family lawyer can often smooth things over with the judge and get the case back on track. But if a pattern of biased decisions begins to materialize, it’s time for a more assertive posture.
Judges Wield Extensive Power in the Courtroom
As long as a judge does not violate the law, he or she has broad discretion to exercise authority over a case. A judge rules on a number of crucial matters, including:
- What evidence is admissible
- What witnesses can be called
- Whether objections are sustained or overruled
Judges can also question witnesses to clarify testimony and elicit material facts. They can even call their own witnesses, which is essentially what family court judges do when they order Child Protective Services to investigate, or court-appointed social workers and psychologists to conduct interviews. Judges can also order parties to mediate disputes before they can go to trial.
But judges are more than managers of court proceedings. Most family court hearings are “bench trials,” meaning there is no jury. The judge, who rules on the law, also determines the facts of the case. Thus, a judge’s conduct has a profound influence on the outcome of a case. Having an unfair judge in family court will inevitably lead to an unfair result.
Proving Bias to Have a Family Court Judge Removed
New York law on judicial bias follows the common law of many states, which employs a two-part test for disqualification or recusal. The first, subjective test asks whether the judge believes that he or she is biased. The second, objective test asks whether a disinterested person might reasonably question the judge’s impartiality. If the answer to either question is yes, the judge is disqualified.
Let’s imagine that our judge has no prior relationship to the opposing party or tangible interest in the outcome of your case, and denies having any bias. What evidence would your attorney need to persuade a reasonable third party that the judge might be biased?
- Ex-parte communications — According to the rules, judges should not discuss the case separately with any one party, although there are a few exceptions, such as emergency custody hearings and administrative matters. A judge who holds ex-parte discussions where factual information is exchanged and fails to notify the other party is behaving questionably, to say the least.
- Biased remarks — Judges are permitted to make critical, even rude and biting, comments to the parties before them and their attorneys. But according to the United States Supreme Court, they cannot make statements that “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Statements that express a preliminary preference based on matters presented in court are permissible, as are criticisms of counsel’s misconduct. However, a judge cannot make a statement indicating the outcome is decided before the proceedings.
- Use of extrajudicial sources — Judges must rule on the evidence presented in court. They cannot consider gossip they hear in the corridors of the courthouse, or do their own investigative work to uncover facts not presented in court. A judge cannot formulate opinions based on knowledge he or she should not possess.
- Unfair treatment — A judge cannot treat a party or counsel harshly, without correcting misbehavior.
- Denial of due process — Judges can reprimand parties and their counsel, but they cannot take away basic due process rights as punishment for poor behavior. For example, if a party is late or unprepared, the court cannot refuse to hear a witness testify or allow cross-examination of a witness.
- Expression of personal bias — A judge who evinces a discriminatory view of a class of people to whom a party belongs, such as race, religion, or ethnicity, should not be serving on the bench.
An experienced family law attorney should be prepared to challenge a judge whenever perceived bias could influence a client’s case. The attorney must get objections on the record and build a case for removal of the judge in the midst of proceedings or reversal of the rulings on appeal.