Florida Divorce & Child Custody Appeals | Removing a Judge

A Florida Divorce & Child Custody appeals attorney provides answers to the most common questions when considering removing a judge from your case.


Sometimes divorce court judges in Florida exhibit behaviour that makes you reasonably believe the judge is biased, or may be biased, when deciding your case.  When this happens, your first recourse is to file a motion to disqualify the judge.  In nearly all situations, divorce court judges will grant what appears to be a good faith motion to disqualify them from the case.  Nearly all judges are sensitive to making sure you feel like you are going to get a fair trial, even if the judge does not personally think they are biased against you.

But what do you do if the judge denies your request to remove them from the case?  The remedy in this situation is to ask the appellate court to review the situation and order the judge off your case. 

The order from the appellate court that removes the divorce court judge from your case is known as a Writ of Prohibition.  The process for obtaining a Writ of Prohibition to require your divorce court judge to remove themselves from your case is explained in further detail below.

As with other appeals, a Petition for Writ of Prohibition must be initiated within 30 days of the rendition date of the lower court’s order.  However, unlike other appeals, you really need to be ready when it comes to initiating a Petition for Writ of Prohibition, because you must file what is essentially an appellate brief with the appellate court before expiration of the 30 day deadline to appeal.

If your Petition for Writ of Prohibition is convincing, the appellate court will require the other party to file a response to your request for the Writ, which is essentially equivalent to an Answer Brief.  Thereafter, you will be permitted to file a response to the other party’s response before the appellate court makes a final decision.

When filing a Petition for Writ of Prohibition in Florida you need to convince the appellate court that the divorce court judge should have removed themselves from your case.  To do this, you need to establish that you filed a procedurally sufficient Motion to Disqualify your judge. 

Generally speaking, with a few technical exceptions, your motion seeking to disqualify the judge will be procedurally sufficient if (1) you filed the motion under oath within ten days of the incident leading to your basis for removing the judge; (2) your attorney certified in the motion that the motion was brought in good faith; (3) your motion establishes that you have a reasonable basis for fearing the judge will not fairly handle your case; and (4) your basis for seeking disqualification is not related to receiving an adverse ruling from a judge or garnering anger from a judge based on your own bad faith actions.

Also, a basis for seeking a Writ of Prohibition can be the manner in which the trial court denied your request for recusal.  Florida law requires your divorce court judge to either grant or deny your motion without elaborating as to the merits of same (except when you have previously attempted to disqualify that same judge).  If the judge comments on the validity of your motion for disqualification, the law requires the judge to be removed from the case (except when you have previously attempted to disqualify that same judge). 

There are other situations when seeking a Writ of Prohibition is appropriate, but in Florida family law cases the process is typically used to seek review of an order denying a request for disqualification of a divorce court judge.  The bottom line is that if a divorce court judge refuses to remove themselves from your case, you should seek out a qualified appellate lawyer to determine if there is a basis for seeking a Writ of Prohibition.  Given the applicable time deadlines, you should attempt to seek assistance of appellate counsel as soon as possible.

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