Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

When is it proper to disqualify a judge in a Florida family law proceeding? When a party has a reasonable basis to believe he or she will not receive an impartial ruling from a judge based on the judge’s conduct or statements, disqualification may be appropriate. This was an issue in the case Murphy v. Collins, 3D20-0672 (Fla. 3d DCA July 22, 2020).

The parties were not married, but had a child together. After they separated, the mother moved back to her home state of Pennsylvania while the father remained in Florida. The mother initiated custody proceedings in Pennsylvania, while the father initiated a paternity action in Florida and requested return of the child. The mother moved to dismiss the father’s petition based on forum non conveniens. The father’s motion for return of the child was denied, and hearing was set at which the court required the mother to be personally present. This hearing was set with less than a week’s notice, so the mother requested to be able to appear by telephone, indicating it would be a hardship for her to miss work, find child care and travel in less than a week for the hearing. The court did not rule on the mother’s motion to appear by telephone.

When the mother did not appear in-person for the hearing, the court issued an order to show cause against her which was set for hearing in March 2020 by the father along with a time-sharing request. The mother moved to strike the notice of hearing, noting her concerns about traveling amid COVID-19 and again requesting to appear remotely. The court again failed to rule on this motion before the hearing. However, in a separate case in which counsel for the mother appeared before the same judge, the judge made comments to the mother’s counsel in which the judge allegedly raised her voice “and told [mother’s counsel] that [mother’s co-counsel] had filed a motion as a ‘ploy,’ had a ‘history of submitting motions at the last minute,’ that she had ‘instructed’ her staff ‘not to accommodate [mother’s co-counsel],’ since he ‘plays games’ and ‘blames the court and her staff,’ and she was ‘tired of it.’”

Based on these statements, a motion to disqualify was filed in that separate case which was granted by the judge. A motion to disqualify was filed in the mother’s case with the same allegations, but it was denied. The mother appealed. The appellate court noted “As to the substance of the allegations, we have ‘previously noted that ‘a judge should disqualify himself or herself in . . . instances where . . . the judge has a personal bias or prejudice concerning a party or a party’s lawyer.’’” The court held “Here, the trial judge’s alleged characterization of [the mother’s] counsel as engaging in ‘ploy[s]’ and having a ‘[history’ of filing late motions and ‘blaming’ court staff, by itself, could have rendered [the mother’s] fear of bias a reasonable one.”

The court concluded “In light of the trial judge’s prior, unexplained failures to rule on [the mother’s] motions for telephonic appearance, despite their colorable allegations, as well as her unsupported oral finding on [the mother’s] purported ‘refusal’ to travel to a hearing where no evidence was taken, her subsequent disparagement of counsel reasonably caused [the mother] to fear not only a lack of impartial proceedings in the future, but that she had already been penalized without knowledge or recourse. The fact that the same trial judge properly granted an almost identical motion to disqualify in the proceedings where the statements were originally made buttresses our conclusion that disqualification is required here. Therefore we grant the petition and remand for further proceedings following the reassignment of the case to a new judge.”

Disqualification of a judge is step that is not taken lightly. Schedule a consultation with a Miami family law attorney to understand how the law may be applied to your case.