Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Disqualification of a judge in a Florida family law case may be considered an extreme remedy which is granted sparingly. In order to have a judge disqualified, a party must show that he or she has a reasonable fear that the judge is incapable of being impartial or fair toward that party. This was an issue in the case MacKenzie v. MacKenzie, 2D2025-1096 (Fla. 2d DCA November 26, 2025).
The husband in a pending divorce case sought to disqualify a successor judge in his case. The basis arose from a notice of unavailability filed by the husband’s counsel. She explained that her unavailability was due to medical leave. The trial court noted that she filed notices of unavailability in two other cases pending in the same division with different end dates for the leave period. When the judge became aware that the husband’s lawyer was also counsel for the judge’s brother in an unrelated case, the judge requested the husband’s lawyer to provide to the judge’s office a list of all active cases pending in the judge’s division so that the judge could disclose a possible conflict of interest to the parties in those cases. In response, the husband’s lawyer e-mailed the judge’s office stating:
I received the request for me to provide all of my cases that are assigned to Section 17. However, I am going on medical leave very soon as well as terminated my legal assistant . . . at the end of 2024 due to my need to downsize. So, I hope you can understand the additional work that this has placed on me. During my medical leave, I planned to review and update my client tracker spreadsheet . . . and will provide a list as soon as physically and mentally possible.
After the initial motion to disqualify the judge was denied, the husband filed a successive motion stating he feared he would not receive a fair trial because the judge was biased against his counsel. In an order denying the successive motion, the judge made findings and comments concerning the mental health of the husband’s lawyer, her competency to practice law, and her candor toward the court. The husband then filed yet another motion to disqualify, incorporating the prior motion and including new arguments based on the statements in the order denying the prior motion. This was also denied, and the husband filed a petition for writ of prohibition with the appellate court challenging the denial.
The appellate court first noted “In evaluating a successive motion, a more stringent standard of review applies, and the reviewing court must determine ‘whether the record clearly refutes the successor judge's decision to deny the motion.’ Dougan v. State, 105 So. 3d 519, *1 (Fla. 2012) (unpublished table decision) (quoting Kokal v. State, 901 So. 2d 766, 774 (Fla. 2005)).” In granting the petition, the appellate court held “The most concerning comments indicative of bias or prejudice towards Mr. MacKenzie's counsel related to counsel's mental fitness and lack of candor. In responding to the judge's request for a list of her section 17 clients, counsel sent the email stating that she would do so "as soon as physically and mentally possible" after she had returned from medical leave. Based on this comment that recovery from a medical issue involved both physical and mental recovery, the judge proceeded to question counsel's mental fitness to practice law.”
Nothing in this article is intended to be legal advice. For specific guidance regarding your case, schedule a consultation with a Miami family law attorney.