Q. My husband has filed for divorce and set a hearing for custody of our children. I was just served with the papers. My girlfriends tell me that the judge assigned to my case may be prejudiced against women. I don't feel safe using this judge. What can I do?
Trish, Ventura, CA
A. While most judges are inherently fair, I believe it is critical to your
experience with the Family Court system that you trust that your judicial
officer is unbiased. Information from friends about their experience or
observations may indeed be useful, but you will never really know why
their outcome was what it was and it likely has nothing to do with any
kind of prejudice.
One reason why I promote mediation so vigorously it is scary to trust that any given judicial officer, or any person for that matter, to decide life-changing matters for you and your family rather than you and the other party/parent. Litigation should always be the option of last resort, to be used only when you and/or your spouse or domestic partner are so conflicted that you cannot work together. With mediation, no one but the parties decides the outcomes. How could that not always be the best solution?
California allows each party in all civil proceedings, including divorce and dissolution of domestic partnerships, to disqualify one judge within a limited time after the case is filed without any proof of actual prejudice or bias. This is called a "peremptory disqualification" and it is governed by California Code of Civil Procedure section 170.6. It requires you file an 'affidavit of prejudice' in a timely manner. The statute tells you what you need to say. Read it if you are going to use this remedy!
Procedures vary in different counties on exactly when you need to file your 170.6 challenge with the court clerk, and the timing depends on whether your county uses "all purpose assignments" when the case is first filed, or if it instead directs hearings to a master assignment department - which then assigns the file to particular courtrooms depending upon daily availability. It also may depend on how many judges there are at your courthouse. Please check your local rules and read § 170.6. Eastern Riverside County in Indio uses the direct assignment approach, meaning that when a case is first filed it belongs to one of our two local family law judges. This assignment is determined by the last odd/even numeral of the case and is a matter of the luck of the draw.
Failing to file an affidavit of prejudice in a proper manner will usually result in your motion being denied, and so you can become stuck with the very judge or commissioner whom you sought to get rid of - giving you a concern that he or she won't like you now for sure (probably not so, but again perceptions of fairness are critical to the orderly administration of justice).
In all purpose assignment jurisdictions you must file your peremptory disqualification no more than least 15 days after you are served with the pleadings (assuming they contain notice of the assignment), or if you've not yet appeared in the proceedings then within 15 days of notice of the assignment.
There is a different set of rules for attempting to disqualify a judge for cause, something that you can try at any time, but this is an uphill battle and judges have an interest in resisting these motions since a finding of actual prejudice does not reflect well upon them. C.C.P. section 170.3 governs those requests. Most jurisdictions have county counsel review and oppose them and it is the judge himself or herself who decides whether to recuse or disqualify themselves - we naturally all think we are fair and how many people can admit prejudice?
Thurman W. Arnold III, CFLS