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Do I have grounds to request a judge to recuse himself?

Santa Maria, CA |

Bitter custody case involving domestic violence on children and 2,600 mile move away. Minor's counsel was appointed and disregarded all evidence of previous DV and neglect by mother against children. Minor's Counsel recommended youngest daughter to mother(2,600 miles away) and oldest son to me, both kids with me until after school year. Judge agreed. Post ruling, mother again committed DV, validated by psychologist, CPS would not act because mother and children in two different states. I motioned for temp cust, supervised visitation and removal of minor's counsel. Minor's counsel removed but has long lasting effect on the court. Judge spoke with kids and the kids said no to splitting and son told the judge about DV. Judge re-diagnosed son with general depression, didn't believe domestic violence ever occured, refused expert testimony at this hearing or any future hearing saying no one can come in here to change his mind, accused me of parental alienation, and sent both children on visitation with abusive mother again with youngest daughter in perm custody of mother! My attorney says to enroll in counseling to admit I was wrong to get on judge's good side - I disagree!

Mother is suspected Boderline Personality Disorder. I am a high ranking military officer. I just hired this lawyer about two weeks ago so he is still new to the case. Minor's counsel was recommended by ex's lawyer and appointed by the judge. I represented myself and successfully removed minor's counsel for cause under numerous failure to perform duties and ethics violations (emails and court transcripts as evidence). Now it appears the judge has a vendetta against me. I'm just asking for a second opinion.

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Attorney answers 3

Best Answer
Posted

There are two basic methods exist by which a party may seek to disqualify a California judge: he may either challenge the judge for cause-- pursuant to C.C.P. Secs. 170.1 through 170.5--or file a peremptory challenge--pursuant to Sec. 170.6.

You can only use Sec 170.6 prior to the judge making any substantive decisions in your matter. I wold think long and hard before you move to disqualify a judge. Based on the facts as your presented them it does not sound like 170.6 will work, thus you are left with the other methods, which are not slam dunks. If you lose, you will be before the judge who you tried to disqualify. Probably not a good thing.

James V. Sansone, Esq.
Attorney & Counselor at Law
Law Offices of James V. Sansone
1260 N Dutton Ave, Ste. 135
Santa Rosa, CA 95401
t: (707) 542-5611
f: (707) 542-5655
jsansone@jamessansonelaw.com
www.jamessansonelaw.com

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Asker

Posted

Very simple question and this guy answered.

Posted

You have an attorney. No one here would be in the position to counsel you better than your own attorney. Perhaps you should listen to his advice. There is a lot more to your story, I am betting.

Attorney Inga Stevens is licensed in Maine. She provides general information on Avvo.com. No attorney-client relationship arises out of the information given here.

Hillary Johns

Hillary Johns

Posted

Oh I don't think that there's much question about that. I agree with Ms. Stevens. If you already have a lawyer with an extensive case history such as the one you've described, it would be inappropriate for a lawyer to second guess or contradict your lawyer especially since Avvo lawyers are intended to give general advice.

Posted

You don't provide a time-frame for any of this, nor do you say whether anyone pursued an appeal when the judge "disregarded" evidence (judges aren't allowed to disregard evidence; if someone presents contrary evidence, they can, however, decide who to believe and not to believe) , nor do you say what's pending before the judge at this time.

Also, remember, if you try to recuse a judge, and you're NOT successful, then you're in front of the judge, who's even less happy with you...

Asker

Posted

First hearing on Feb 3, 2012, judge split custody. Final order still not filed. DV occurred May 17, 2012, motion for temp custody filed May 29 with request to shorten hearing time because expert witness(substantiating psychologist) leaving the country and denied, hearing on July 3, 2012, expert witness out of country on date of hearing but he wrote a letter under declaration of perjury describing the DV and recommended against unsupervised visitation until ex had full psych eval, I requested delay for full evidentiary hearing and time to obtain counsel. Judge denied both, kids with mother on July 5th to present, unsupervised and against their wishes. Kids are 15 and 10. Ex has broken 10 year old's cell phone and substantially restricted contact.

Hillary Johns

Hillary Johns

Posted

Talk to your lawyer. It sounds like you just want someone to validate your request. An actual legal answer would require a consultation, a comprehensive review of your case and its facts, as well as its history, the transcripts, and the court orders. You've only presented conclusions. You've mentioned domestic violence and parental alienation and that you don't agree with the judge. That's not unusual when you lose in court. Talk to your lawyer, conduct yourself appropriately in terms of communicating with your lawyer, and cooperate with counsel. You can speak with your lawyer as to how to proceed and wheter asking the judge to recuse himself from your case.

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