A lot of times, people who have an unsatisfying experience in court – especially family court – say they lost because the judge “had it in“ for them. Often this is the bitter complaint of someone who didn’t have a strong case or perhaps did have an adequate case but neglected to proceed without an experienced South Florida family law attorney.
Judges are not perfect, though, and sometimes, that appearance of bias is something more than just a figment of the imagination of an unsuccessful litigant. When a genuine issue of judicial bias occurs, this is another time when it pays to have a skilled attorney on your side so that he/she can aid you in handling it the right way.
E.M. was one of those litigants. In January 2020, E.M. and her infant child moved from Key West to Pennsylvania after the child’s father allegedly threatened to punch E.M. The mother filed a custody action in Pennsylvania and the father opened a custody case in Florida. The mother’s Florida attorney also filed a motion seeking to get the Florida custody action dismissed. The judge in Key West denied that motion.
Not long after, the mother’s legal team asked to disqualify the trial judge in Key West. The basis of the request was much stronger than just “I lost my motion; therefore the judge is biased against me.” In E.M.’s case, one her attorneys, R.M., testified that, in an unrelated case, the judge began yelling at R.M. about the conduct of another of the mother’s attorneys at the same firm, accusing the more senior attorney of using motions as a “ploy” and of playing “games” with the court.
A lot of times, a judge’s bias against you or your legal team may come as a shock to you. Sometimes, it may even come as a surprise to your attorney, as well. A skilled attorney, however, will know how to respond to ensure you’re not harmed by a judge’s personal “baggage” and to make sure you get a fair outcome in your case.
Even the mere appearance of unfairness is enough
To get a judge thrown off your case, the burden of proof is lower than you might think. You don’t have to provide any evidence that the judge actually did anything harmful to you or your case. All you need is adequate proof that the judge said or did something that would give a reasonable person a “well-grounded and reasonable fear that she will not receive a fair hearing in front of” that judge,
However, in E.M.’s case, the judge did do something tangibly harmful to her case. At the hearing, the judge made an oral pronouncement recognizing the alleged threat of domestic violence as the precursor to the mother’s taking the baby and relocating out-of-state. A finding of fact to that effect would have strengthened the mother’s case. However, when the judge issued her written order, she included a finding of fact about why the mother and child left Key West that was different from the judge’s oral pronouncements and which depicted the mother “in a negative light.”
This, of course, doubly harmed the mother’s case. The non-inclusion of any findings about alleged threat of violence weakened her case, and the inclusion of the derogatory finding of fact weakened it more.
Entering an order that differs in substantial ways from a judge’s oral pronouncements in a hearing is something a judge cannot do. A judge retains the authority to distill her oral pronouncements into a written order, but not to compose a written order that deviates in important ways from what was pronounced in court.
Fortunately for this mother, she had a legal team that knew the correct actions to take, so they were able to protect the mother’s case and ultimately get her motion heard before a different judge.
Your family law case may encounter many surprise twists and turns. One of the best ways to protect yourself from unexpected potential pitfalls is by arming yourself with a skilled and effective legal advocate. The experienced South Florida family law attorneys at Sandy T. Fox, P.A. have a long track record of doing exactly that for our divorce, child custody, child support and other family law clients. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.