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

Disqualifying a judge in a Florida family law case is a serious consideration which should be handled with care. A party can seek to remove a judge from presiding over his or her case if he or she can show the judge is biased in some way and that the party has a reasonable fear that the party will not receive fair consideration in the case. In the case Vialva v. Nunez, 3D21-1292 (Fla. 3d DCA October 6, 2021), the appellate court considered this issue.

The parties were involved in a paternity case. For the first six months of the case, the father represented himself. He then hired a lawyer who moved for disqualification of the judge on grounds that the judge said in a prior case statements about the lawyer which have previously been held to warrant disqualification. The mother filed a response noting that Florida Rule of Judicial Administration 2.330 specifically prohibited the father’s lawyer from seeking disqualification, since the rule states “Upon the addition of new substitute counsel or additional counsel in a case, the party represented by such newly appearing counsel is prohibited from filing a motion for disqualification of the judge based upon the new attorney’s involvement in the case.” The trial court denied the motion for disqualification, and the father filed a writ of prohibition with the appellate court.

The appellate court granted the writ, holding “Under basic principles of textual interpretation, the expression in the rule of certain prohibitions excludes the existence of other prohibitions. Delong v. Fla. Fish & Wildlife Conservation Comm’n, 145 So. 3d 123, 127 (Fla. 3d DCA 2014) (discussing the doctrine of expressio unius est exclusio alterius). Because the Rule prohibits motions to disqualify based on prejudice only against substitute or additional counsel, by implication it does not prohibit motions based on prejudice against initial counsel.” The court went on “Substitution of counsel involves one attorney replacing, or substituting for, another attorney. [. . .] And one cannot retain an ‘additional’ attorney unless one already has an attorney. A person representing himself or herself is, by definition, without the assistance of counsel. [. . .] Because [the father’s] counsel is not ‘substitute counsel or additional counsel,’ the Rule does not prohibit [the father’s] motion.” (internal citations omitted).

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