Miami family law attorney blog
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disqualification of judge
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party requests to remove a judge from presiding over a Florida family law case, this is done through a motion for disqualification. The rules governing this type of motion have strict deadlines. This was an issue in the case Pekel v. Leyva,3D24-1799 (Fla. 3d DCA November 27, 2024).
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
When a motion to disqualify a judge is filed, the judge reviews the motion and has a deadline by which to rule on the motion before it is automatically granted. If the judge issues a timely order on the motion, the order must meet certain requirements set forth in rules of procedure. This was an issue in the case Jada v. Harrison, 5D23-535 (Fla. 5th DCA August 11, 2023).
Posted by Nydia Streets of Streets Law in Florida Florida family law procedure
When a judge does not allow a party to present his or her case before ruling on a motion, due process concerns are raised. In addition, that party might feel he or she will not receive a fair trial in front of that judge. A motion for disqualification may be appropriate. This was an issue in the case Domnin v. Domnina, 4D23-412 (Fla. 4th DCA May 24, 2023).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Can a judge be disqualified from a Florida family law case for holding an evidentiary hearing without notice to one party? Depending on the circumstances, this may be enough to create a well-founded fear that a party will not receive a fair trial before the judge. This was an issue in the case Erren v. Marin, 4D22-2515 (Fla. 4th DCA March 8, 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).
