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socrateaser
socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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Motion to disqualify judge in family law in FL

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I filed a motion to disqualify the judge in my family law case because of her obvious bias. It was received by the court on October 15, 2013. Trial is set for November 12, 2013. My understanding is that the judge has 30 days to rule on my motion. Obviously, that is not quite 30 days.


 


A hearing has been set by my husband's counsel without notice to me for tomorrow morning which I cannot attend as I live in another state. Can the judge preside tomorrow while my motion for disqualification is pending? If she does so, can I appeal?


 


Also, can she wait until November 12 or the eve thereof to rule on the motion for disqualification and then preside over the trial? Or, would she have to serve me with her ruling on the motion for disqualification appropriately?


 


If I were to amend the motion now (to correct some scrivenor's errors), would the 30 day time clock begin all over again for her to rule?  In other words, would she then have 30 days from October 22, to rule, which would place it well past the trial date?  Or would she have only 30 days from the date of original filing prior to the amendment?


 


Thank you so much.

A hearing has been set by my husband's counsel without notice to me for tomorrow morning which I cannot attend as I live in another state. Can the judge preside tomorrow while my motion for disqualification is pending? If she does so, can I appeal?

A: Yes, she can preside -- however, prior rulings of a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification. Rule Jud. Admin. 2.330(h).

Also, can she wait until November 12 or the eve thereof to rule on the motion for disqualification and then preside over the trial?


A: Yes.


Or, would she have to serve me with her ruling on the motion for disqualification appropriately?

 

A: The judge can be a complete a***, if she wishes. However, if your motion for disqualification discloses valid facts, then all this would accomplish would be a reversal of everything on appeal. Nevertheless, as you're probably aware, family court judges tend to play pretty fast and loose with the law. So, you could find that the judge intends to make things as absolutely difficult for you as possible, and you may end up having to go to trial, and then appeal everything.

 

If I were to amend the motion now (to correct some scrivenor's errors), would the 30 day time clock begin all over again for her to rule?

A: Yes.

In other words, would she then have 30 days from October 22, to rule, which would place it well past the trial date? Or would she have only 30 days from the date of original filing prior to the amendment?

A: See above. It would be of little point to amend immaterial statements in your motion. The judge must rule on the substance of your motion, not its form.

Please let me know if my answer is helpful, or if I can provide further clarification or assistance.

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