How to Change Judges in Criminal and Family Court

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 What is a Judge’s Role?

A judge’s role is to decide legal disputes. Judges are often lawyers, but it is not always a requirement. Some judges hear cases regarding a particular subject, like those who work in bankruptcy, probate, juvenile, or family court. Others preside over all criminal cases, while others hear civil disputes.

Some judges work in state courts, where they hear cases pertaining to state laws. Federal judges decide matters of federal law. Within each state and the federal court system there are judges who hear matters of first impression and judges who hear and decide appeals.

A judge has many duties. Some of those include:

  • Presiding over trials where they hear evidence, rule on motions and objections, instruct juries, and make rulings.
  • Ruling on the admissibility of evidence.
  • Presiding over hearings and ruling on motions.
  • Researching the legal issues that are relevant to cases they are hearing.
  • Reading court documents.
  • Maintaining order in the courtroom.
  • Making the final rulings on cases and writing opinions explaining their decisions.
  • Signing arrest and search warrants.
  • Following sentencing guidelines and making sentencing decisions.

In criminal cases judges typically oversee trials and make decisions regarding the admissibility of evidence, rule on motions, determine which witnesses can testify, instruct the jury, and sentence defendants who are found guilty. Serious criminal trials are rarely bench trials, where the judge decides whether the defendant is guilty or not guilty. That is the job of the jury.

Bench trials are more common in civil trials, though the parties can request a jury trial. The judge has the same responsibilities in terms of ruling on motions, the admissibility of evidence, and ruling on objections. In a bench trial the judge is responsible for finding on behalf of the plaintiff or the defendant and then writing an opinion explaining their reasoning based on the law and the facts. At the conclusion of a trial where the judge found for the plaintiff, they also decide damages or other relief.

In any trial the judge is the “trier of law,” meaning they make sure that everything that happens in the courtroom is done according to the law. The trial follows the rules of civil or criminal procedure of the state or federal court where the trial is taking place. In a bench trial the judge is also the “trier of fact.” They review the evidence presented by both sides and determine whether the side with the burden of proof has presented enough relevant facts to have met their burden and “win.”

What Happens if I Want to Change Judges?

It is not unusual for a party to either a criminal or a civil case to want to change judges or to request that a different judge be assigned to their case. Typically a party will request a new judge because there are facts that indicate the assigned judge may not be impartial.

Circumstances that might affect impartiality include:

  • The assigned judge has some financial interest in the outcome of the case.
  • The assigned judge is related in some way to one of the parties.
  • The assigned judge has history with one of the parties. For example, when the judge was a lawyer they represented one of the parties in another matter.

A transfer of a case from one judge to another is possible, and the process for requesting a transfer will depend on the laws of the state or federal court where the case is being tried. State laws for requesting a transfer from one judge to another differ from the federal laws.

It is important to request a transfer early on in the proceedings. A transfer becomes more difficult and less likely the longer the proceedings have been underway. At that point the party requesting the change will likely have to prove that the assigned judge has conducted the trial unfairly.

A judge may also recognize that due to circumstances of the case and their interest in the outcome or relationship to the parties, it will be difficult for them to be an impartial decision maker. They can decide that another judge should hear the case and remove themselves. This is known as a recusal.

How Do I Change Judges in a Child Custody Case?

Changing judges in a child custody case requires showing that the judge is impartial or has acted inappropriately in their handling of the case. It is necessary to document any wrongdoing by the judge, such as rulings against you that are not substantiated by the evidence or proof of a relationship between the judge and the other party.

Though specific state laws will differ, typically your attorney must file a motion requesting a new judge. The motion will outline the reasons why the judge should be changed and include the documentation and evidence. The judge might receive the motion and recuse themselves from the case, though they are under no obligation to do so. If the judge does not rescue themselves, you must ask the court for a different judge to decide the motion and determine whether there should be a change.

Some states have different options for requesting to change the judge assigned to a child custody matter. For example, in California the party requesting the change can file a peremptory challenge asking to remove the judge without having to provide a reason. Each party is entitled to one peremptory challenge to remove a judge.

The other option in California is to ask to remove a judge from your case for cause. When presenting a challenge for cause the party making the request must provide specific evidence showing that the judge should be disqualified because they have:

  • A conflict of interest, bias
  • Financial interest
  • Relationship to one of the parties or their attorney, or
  • A personal knowledge of the facts.

You must file a written declaration outlining the reasons why the judge should be removed and it should be filed as early as possible.

Can I Change the Judge if I Don’t Like How They are Handling My Case?

If you do not like how a judge is handling your criminal case you can file a motion with the court detailing the reasons why the judge should be removed.

Changing judges will not affect the charges a defendant is faced with because judges cannot change a charge. The prosecutor decides the charges and controls whether they will offer the defendant a plea bargain. The judge cannot overrule the prosecutor’s decision to charge a defendant with a particular crime; however, the prosecutor does need the judge to agree to the sentence being offered as part of the plea bargain.

If you are a party to a case and unhappy with how the judge has ruled on a matter of law, you may not need to request a new judge in order to get a new result on that issue. A judge can change their own ruling after being asked to reconsider how they ruled on a motion, objection, or a sentence.

If you have asked the judge to reconsider their rulings and still think the judge should be removed, you, or your attorney, will follow the applicable procedure outlining how to get a judge removed in the jurisdiction where your case is proceeding. You will file a motion detailing the alleged wrongdoing and ask the court to remove the judge and replace them with a different judge before the trial proceeds any further.

Do I Need an Attorney to Change Judges?

The judge assigned to your case will have a significant impact on your trial. If you are aware of any reason why your judge should be removed, you should consult with your attorney about changing judges. The attorney representing you in your criminal or civil case can file the motion to request a new judge.

If you have been charged with a crime it is important that you have an experienced criminal law attorney representing you. Attorneys who are frequently in court will know the judges and may be aware of any potential bias they may have that will impact your case.

The judge assigned to your child custody case will be deciding very important issues for you and your family. Consulting an experienced family law attorney will help you decide whether it is worth trying to remove a particular judge before proceeding with your child custody case.

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