Denver Real Estate Law and Family Law Blog. (Vol 1.57) May 1, 2015
By Craig Franklin Chambers Esq. 7851 S. Elati Street #204, Littleton, CO 80120
The Littleton Lawyer.
As a family law and custody lawyer and a real estate lawyer in the Littleton area, including Denver, Littleton (including Columbine and Ken Caryl), Highlands Ranch, Roxborough Park, I practice in all Denver-area courts and jurisdictions including Arapahoe, Douglas, Denver and Jefferson County.
Litigation in civil cases, especially in family law or divorce cases can be extremely personal. After all, child custody, child support, parenting time, property division, and spousal maintenance are at stake. Often the judge's rulings appear to be arbitrary or unfair. With all due respect to the judicial system, some of them seem crazy or downright wrong.
This is especially concerning for a litigant because some of these family cases go on until the children turn 19, and you can go back to court on different family law issues in front of the same judge or magistrate for years.
I am often asked the question: Am I stuck with the judge on my case?
The answer, as with all legal questions, is, it depends. There is a rule --CRCP 97--which allows for the disqualification of a judge if one of the parties believes the judge is biased. But the belief must be reasonable and cannot be based on the judge's rulings alone.
Judges have a lot of discretion in deciding their rulings, and often witnesses misrepresent facts to the Court. If the unfairness the client perceives is based solely on judge's rulings or a misperception of the facts or law of the case, the best approach is to consider filing a motion for reconsideration, and if that fails, an appeal.
However, judges are human beings who sometimes become personally involved in a case. If you observe the judge acting in a manner that shows bias --that is, if there is even the appearance of bias, such as the judge has an unpleasant demeanor towards you or makes what you believe are inappropriate remarks or comments, you can file a motion to disqualify the judge. This rule applies not only to divorces but to all types of civil cases.
The motion must be supported by affidavits indicating what you observed that you believe shows bias or the appearance of impropriety or bias. And the basis for the motion can't be simply be that you disagree with the judge's rulings. There must be a tangible basis for the allegations of personal bias in the context of the case. Because you are accusing the judge of bias, this is an extreme measure that should not be taken lightly.
Once you file the motion, all judicial proceedings in the case are halted. The facts in the affidavits supporting the motion are presumed to be true. The judge will review the motion in his chambers and determine if the facts as asserted do reasonably constitute bias or the appearance of bias.
If so, the judge will disqualify himself and the case will be reassigned by the Chief Judge to another judicial officer. If not, and the judge remains on the case, you already have at least one basis for an appeal.