There are currently twenty-seven (27) judges assigned to Family Court in Maricopa County. Some judges are new to family law and some are extremely familiar with family law.
Occasionally there may be a reason to ask for a new or different judge in your Family Court case. Each party is entitled to request a change of judge once as a matter of right. This means you do not need to explain why you want a new judge and you will be granted a new judge without question. However, there are some requirements which must be met in order for your request to be effective. For the purposes of this post we will only be looking at requesting a new judge as a matter of right (and not for cause).
Rule 6 of the Arizona Rules of Family Law Procedure states as follows:
“All notices and requests for change of judge shall be made in accordance with Rule 42(f), Arizona Rules of Civil Procedure. The filing of one or more post-decree or post-judgment petitions does not entitle any party to an additional notice of change of judge or court commissioner.”
Rule 42(f), Arizona Rules of Civil Procedure states as follows:
“1. Change as a Matter of Right.
(A) Nature of Proceedings. In any action pending in superior court, except an action pending in the Arizona Tax Court, each side is entitled as a matter of right to a change of one judge and of one court commissioner. Each action, whether single or consolidated, shall be treated as having only two sides. Whenever two or more parties on a side have adverse or hostile interests, the presiding judge or that judge’s designee may allow additional changes of judge as a matter of right but each side shall have the right to the same number of such changes. A party wishing to exercise that party’s right to change of judge shall file a “Notice of Change of Judge.” The notice may be signed by an attorney; it shall state the name of the judge to be changed; and it shall neither specify grounds nor be accompanied by an affidavit, such as required by subsection (f)(2) of this rule, but it shall contain a certification by the party filing the notice or by the attorney that (i) the notice is timely, (ii) the party has not waived the right under subsection (f)(1)(D) of the rule, and (iii) the party has not previously been granted a change of judge as a matter of right in the case. A judge may honor an informal request for change of judge. When a judge does so, the judge shall enter upon the record the date of the request and the name of the party requesting change of judge. Such action shall constitute an exercise of the requesting party’s right to change of judge.
(B) Filing and Service. The notice shall be filed and copies served on the parties, the presiding judge, the noticed judge and the court administrator, if any, in accordance with Rule 5, Arizona Rules of Civil Procedure.
(C) Time. Failure to file a timely notice precludes change of judge as a matter of right. A notice is timely if filed sixty (60) or more days before the date set for trial. Whenever an assignment is made which identifies the judge for the first time or which changes the judge within sixty (60) days of the date set for trial, a notice shall be timely filed as to the newly assigned judge if filed within ten (10) days after such new assignment. A notice of change of judge is ineffective if filed within three (3) days of a scheduled proceeding unless the parties have received less than five (5) days’ notice of that proceeding or the assignment of the judge. The filing of such an ineffective notice neither requires a change of judge nor precludes the party who filed it from subsequently filing a notice of change of judge that otherwise satisfies the requirements of this rule.
(D) Waiver. After a judge is assigned to preside at trial or is otherwise permanently assigned to the action, a party waives the right to change of that judge as a matter of right when:
(i) the party agrees to the assignment; or
(ii) after notice to the parties:
(aa) the judge rules on any contested issue; or
(bb) the judge grants or denies a motion to dispose of one or more claims or defenses in the action; or
(cc) the judge holds a scheduled conference or contested hearing; or
(dd) trial commences.
Such waiver is to apply only to such assigned judge.
(E) Cases Remanded From Appellate Courts. When an action is remanded by an appellate court and the opinion or order requires a new trial on one or more issues, then all rights to change of judge are renewed and no event connected with the first trial shall constitute a waiver.
(F) Assignment of Action. At the time of the filing of a notice of change of judge, the parties shall inform the court in writing if they have agreed upon a judge who is available and is willing to have the action assigned to that judge. An agreement of all parties upon such judge may be honored and, if so, shall preclude further changes of judge as a matter of right unless the judge agreed upon becomes unavailable. If no judge has been agreed upon, then the presiding judge shall immediately reassign the action.
If a judge to whom an action has been assigned by agreement later becomes unavailable because of a change of calendar assignment, death, illness or other legal incapacity, the parties shall be restored to their several positions and rights under this rule as they existed immediately before the assignment of the action to such judge.”
As the rule states, a notice for change of judge as a matter of right must be made in a timely fashion and must be made prior to an event occurring which would qualify as a waiver. Additionally, if a ruling ends up being appealed, and the appeal is successful, the right for notice of change of judge as a matter of right is renewed.
If the request is not made in a timely fashion or if one of the events qualifying as a waiver were to occur prior to a notice being filed, it would be extremely difficult to have a new judge assigned. The only way to have a new judge assigned( if a notice has not been timely made or a waiver has occurred) is to have “cause” for assignment of a new judge. Such requests are rarely granted.
Only a family law attorney can give you proper insight as to whether requesting a new judge may be a good idea as we appear in front of these judges regularly. Given the various scenarios that could result in your request being untimely or waived it is important to consult with an attorney early in the case to insure you don’t miss what may be a very crucial event in your case.
This answer is for informational purposes only. It is not intended, nor should it be construed as legal advice. No attorney-client relationship shall exist unless and until an agreement for legal services is reached between attorney and client, and a legal services contract is fully executed by and between attorney and client.