Many participants in the family court system are unfamiliar with an important rule – the right to a change of judge.
When a party files a new case – a petition for dissolution of marriage, or for paternity and custody – the county clerk randomly assigns the case to one of the judges in the family court. The number of judges in a family court varies based upon the size of the county.
Rule 51.05 of the Missouri Rules of Civil Procedure states that every party has a right to change of judge upon application – the “one strike” rule. The application must be filed within 60 days of service of process or 30 days from designation of the trial judge, whichever is longer. The change must happen automatically and need not allege any reason.
Why would a party want a change of judge?
This is rather difficult question to answer. While all judges take an oath to handle a case impartially, and all judges promise to faithfully discharge the law, judges in the family court have a great deal of discretion in deciding cases and each judge has different views and procedures that are well known to lawyers who practice in the family court. So, if a lawyer feels that based on history the facts of a particular case would not fare well with an assigned judge, it would make sense to strike that judge and get a reassignment to another judge. Also, parties to the litigation may, after a first appearance in front of a judge, feel a negative reaction to how that judge handled that appearance. Or perhaps the party may feel he or she made a poor impression on the judge that will hover over the case. These situations could also favor getting a change of judge.
Changes of judge can be tricky propositions because you do not know much about how the judge views your case or you so early in the process. And it could be that the judge on reassignment could be worse. But lawyers who are experienced practitioners in a given county should have sufficient knowledge to advise clients about the need to make a change of judge.
Each party has a right to a change of judge, so if both exercise their strike, a case could have a third judge before it really gets going.
Beyond the change of right, a party can move to change a judge for cause. Cause refers to some aspect of the case and the judge that suggests the judge cannot rule fairly and impartially. For example, if the judge is related to a litigant, the judge should be disqualified. Or if, during the course of the litigation, the judge exhibits a bias against or in favor of one party or acts in a way that would be considered improper, that could support a change for cause.
A change to the rule that can harshly impact the family court is that when a party files a motion to modify, the case stays with the same judge that ruled on the original dissolution. Previously, the case would be randomly assigned or a party had a right to a change without cause. Now, family cases carry a “one judge” rule. The theory behind the rule change is that a judge that has familiarity with a case would be in the best position to consider modifications. But parties may feel differently, especially those who feel they received less than fair consideration in the final judgment. Consequently, the modifications may proceed in a similar manner, at least in view of the aggrieved party.
What does this rule change mean for you?
It means that you should speak with your attorney about your assigned judge and whether your attorney thinks it is a good idea to keep this judge for the long haul – not just for this one case but for any future modifications.
The judge assignment is much more important than most litigants realize in the family court. You should discuss this issue carefully with your attorney.
If you have questions about the change of judge process and divorce or custody, contact us – we can help.