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.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
A judge is required maintain impartiality in a Florida family law case. This includes giving advice to one side or the other about how to proceed in the case. This was an issue in Torres v. Orlick, 6D24-469 (Fla. 6th DCA April 19, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
How many times can a party ask to disqualify a judge from a Florida family law case? While there is no known limit, once one judge is disqualified, the standard for disqualifying the second judge is more stringent, and thus it may be more difficult to disqualify a successor judge. This was an issue in the case Delgado v. Miller, 3D22-1826 (Fla. 3d DCA February 22, 2023).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party wants to remove a judge from presiding over a Florida family law proceeding, the party must file a motion for disqualification. “To be legally sufficient, a motion to disqualify must demonstrate some actual bias or prejudice so as to create a reasonable fear that a fair trial cannot be had.” Saenz v. Sanchez, 3D22-1688 (Fla. 3d DCA February 1, 2023) (internal citations omitted).
Posted by Nydia Streets of Streets Law in Florida Florida Family Law Procedure
What are some reasons a judge can be disqualified in a Florida family law case? Disqualification means the judge can no longer preside over the case and a new judge will be assigned. The person requesting disqualification must show there is a well-founded, reasonable fear that he or she will not receive a fair trial at the hands of that judge. This was an issue in the case Cini v. Cabezas, 3D22-0716 (Fla. 3d DCA August 10, 2022).
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.
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).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
The recent appellate case Becker v. Becker, 3D19-1493 (Fla. 3d DCA September 18, 2019) explores the issue of the disqualification of a judge in a Florida divorce. In this case, the judge was previously represented by the lawyer representing the wife in a case pending before the judge. The former husband appealed an order denying his motion to disqualify the judge from presiding over the case.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party in a Florida family law case seeks to disqualify a judge, what limitations are placed on the judge while the motion to disqualify is pending? This was an issue in the case Godin v. Owens, 5D18-1176 (Fla. 5th DCA May 31, 2019) in which the mother appealed a final judgment of paternity.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Most Florida divorce cases are resolved during a bench trial. This means a judge, rather than a jury, makes a decision about the issues in the case. Because the judge is one person, many parties fear they may not receive a fair trial if the judge shows bias in favor of one party over the other. This was the issue in the case Higgins v. Higgnis, 5D19-957 (Fla. 5th DCA June 20, 2019) in which the husband appealed an order denying his motion to disqualify the trial court judge.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Parties to a Florida divorce case are understandably concerned about receiving a fair trial in front of a judge. If a party has a reasonable fear that he or she will not receive a fair hearing in front of a judge, he or she may file a motion for disqualification. However, as we see in the case Erlinger v. Federico, 242 So.3d 1177, certain behavior by a judge, although unpleasant to a litigant, does not automatically disqualify the judge from presiding over a case.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Florida family law litigation rarely involves jury trials. This means cases are decided solely by the judge presiding over the case who hears testimony and reviews evidence. When a party believes the judge is biased or otherwise will not decide a case fairly, what can be done?
