Can Families Request a Different Judge in Illinois Divorce and Family Law Cases?
In a courtroom, the judge plays a vital role in ensuring all actions follow procedures established by law and is responsible for determining the outcome of a case, especially in family matters where a jury is not present.
Given the important nature of a judge, clients have the right to ask for a change of judge if certain conditions are met, including:
- A conflict of interest
- As a matter of right, or
- For cause
Conflict of Interest
The court may grant a substitution of judge if a conflict of interest exists. This situation may arise if the party feels there is an outside factor that could impair a judge’s ability to remain neutral such as:
- The judge has an interest in the outcome of the case
- The judge’s testimony is relevant to the case
- There is a relationship between the parties or counsel and the judge
If there is a conflict of interest, the substitution may be requested by the parties, counsel, or ordered by the Judge sua sponte. lf you believe a conflict of interest may exist, it is important to speak to an attorney as soon as possible to discuss your options.
As a Matter of Right
Each party has the right to request a judge substitution as a matter of right as long as the request is made before the judge makes any substantive rulings in the case. Each party may invoke this right one time.
Determining whether a ruling is substantive can be tricky and should be discussed with an attorney. Generally, a ruling on a substantive issue has occurred when a judge has made a decision on an issue that relates to the merits of the case rather than a simple procedural issue.
Requesting a substitution of judge for cause is typically done if a party feels the judge has made decisions in the proceedings that are improperly prejudicial or biased against the requesting party. Asking for a judge substitution under this category comes with a high legal burden and requires supporting evidence.
Under this process, once a petition has been filed with the necessary supporting materials, a hearing will be heard by a different judge in the domestic relations division who will determine whether to grant the substitution. Unlike a substitution as a matter of right, a party may request a substitution for cause more than once.
What’s the Procedure to Request a Substitute Judge?
When considering requesting a judge substitution, it is important to speak with an attorney on potential options and likelihood of success. Often the process of requesting a judge substitution will cause delays in a pending case that need to be taken into consideration.
To begin the process of judge substitution, the attorney will have to draft and file a motion with the court clerk. Notice must be given to both parties in the case. Depending on the type of substitution requested, once the materials have been accepted and submitted, the case may be transferred to a new judge to make a ruling on whether to permit the judge substitution.
If your family is interested in a change of judge, contact our Kogut & Wilson attorneys.