Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Florida Rule of General Practice and Judicial Administration 2.330(e) sets forth the grounds for a motion to disqualify a judge in a Florida family law case. The rule states:
A motion to disqualify shall set forth all specific and material facts upon which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) the party reasonably fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or
(2) the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse of domestic partner of such a person:
(A) has more than a de minimis economic interest in the subject matter in controversy or is a party to the proceeding, or an officer, director, or trustee of a party;
(B) is acting as a lawyer in the proceeding;
(C) has more than a de minimis interest that could be substantially affected by the proceeding; or
(D) is likely to be a material witness or expert in the proceeding.
(3) The judge served as a lawyer or was the lower court judge in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter; or
(4) The judge has prior personal knowledge of or bias regarding disputed evidentiary facts concerning the proceeding.
In the case Azrack v. McDonald, 3D24-0642 (Fla. 3d DCA May 10, 2024), the petitioner sought a writ of prohibition after the petitioner’s motion to disqualify the trial judge was denied. The appellate court noted “‘The judge against whom an initial motion to disqualify under subdivision (e) is directed may determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. . . . If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. Such an order does not constitute acknowledgement that the allegations are true.’ Fla. R. Gen. Prac. & Jud. Admin. 2.330(h). The test for legal sufficiency is whether the facts alleged, taken as true, would cause a reasonably prudent person to fear that he or she will not receive a fair trial or hearing.”
The court concluded, “Accordingly, based on the record before us, we are compelled to grant the petition, but we withhold issuance of the writ as we are confident the trial judge will comply.” Schedule your meeting with a Miami family law attorney to go over your questions about your case.