Family Law

questions & answers

Question: If I feel that the judge that has my case is unfair and being partial to mky ex. can I request a new judge?

Answer:

The relevant statute for asking for a change of judge is found at A.R.S. 12-409:

12-409. Change of judge; grounds; affidavit

A. If either party to a civil action in a superior court files an affidavit alleging any of the grounds specified in subsection B, the judge shall at once transfer the action to another division of the court if there is more than one division, or shall request a judge of the superior court of another county to preside at the trial of the action.

B. Grounds which may be alleged as provided in subsection A for change of judge are:

1. That the judge has been engaged as counsel in the action prior to appointment or election as judge.

2. That the judge is otherwise interested in the action.

3. That the judge is of kin or related to either party to the action.

4. That the judge is a material witness in the action.

5. That the party filing the affidavit has cause to believe and does believe that on account of the bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial. If you believe one of the above grounds applies in your case, you can file a Motion for Change of Judge with the court. In this motion you can ask the judge voluntarily remove himself/herself, or that the court remove the judge from the case.

However, be aware that once a case is underway, it is unlikely a judge will remove himself/herself without cause. Additionally, a very high burden must be met to show the judge is acting with bias and therefore should be removed. It should be emphasized that you must show objective proof the judge is favoring the other party, and that any bias is negatively affecting the administration of justice – a feeling that the judge is acting unfairly is not enough to sustain a motion to change the judge.