Getting a new judge doesn’t happen often, but there are times when a man we represent in a divorce feels the judge is treating him unfairly. In New Jersey family law, it is possible to request that a judge step aside – it’s called “recusal” – but it’s not an easy or simple process.
And it does not always work.
How to Get a New Judge
Without going into the legal mumbo-jumbo of how or why we would file and argue this kind of a motion, basically it involves demonstrating that a judge is acting in what lawyers call an “arbitrary and capricious manner.” In short, that means the behavior of the judge is weighing the trial unfairly in favor of your wife regardless of the facts being presented.
Generally, this is done after the court rules on the divorce and an appeal is being requested, but in rare instances a recusal motion can be argued during the trial. We would have to prove that the factual reasons for which we are asking that a judge be disqualified, such as a bias or appearing to be biased, are true. It is a steep burden to overcome.
For example, we have heard of cases where, during a trial, the judge said something like “I don’t care what you say” or, even worse, “A husband who cheats on his wife doesn’t deserve to be heard.” Clearly, that would be biased and acting arbitrarily as both sides are presenting their case.
But the rationale for asking that a judge remove themselves from a case during a trial or on appeal is seldom this obvious.
Although we always try to reach a settlement with your former wife without having to go to a trial, we often hear clients complain during a lunch break or recess that they think the judge is being unfair to them. Nearly all the time, this is the stress and emotion of the moment speaking. What you may think is showing a bias generally is the judge asking a question for clarification or to get at the heart of what your ex’s attorney is saying. The question a judge asks may sound to you as if the court is taking sides but, overall, the judiciary takes its responsibility to be even-handed very seriously.
But besides bias, one area where we can ask for a new judge is if their decree violates New Jersey guidelines for child support, custody, or a father’s visitation rights. If a case ends up going to trial, one of the things we always push hard on is making sure that the court recognizes these basic ground rules are followed.
We Can Help
As your New Jersey family and divorce lawyers for men and fathers, we are going to aggressively protect your interest whether it is at a settlement conference or in court. If we sense our trial judge is biased or acting unfairly, we will be on our feet before you even have figured out why we’re objecting to something.
