Do I Get to Pick the Judge in My Divorce or Custody Case?

An experienced Denver family law attorney knows that a critical factor in how a case could be decided, should it go to full blown litigation, or a trial, is which judge the case will be in front of. In the body of law that encompasses divorce, child support, and custody, there are certain facts that leave little room for discretion in terms of how a court might rule. This could be a situation in which all monetary figures are known in a child support calculation and the only thing to be done is to apply the statutory formula. However, there are many other areas, such as determining visitation (parenting time) or equitable division of marital property in which a judge is given a wide range of latitude to render decisions she or he feels is in the child’s best interest or is “equitable.” With the presumption that all area judges render decisions in an ethically “fair” or appropriate manner, the reality is that subjectivity in terms of how a judge views a specific issue can come into play. It’s just human nature.

With years of experience, our attorneys strive to learn about each judge and to ascertain his or her leanings on the various family law topic which might arise in a case. As such, one of the first questions I will ask a client who comes to us with a case already under way is “which courtroom is your case in?” or “what judge or magistrate do you have?” Of course, I will then let the client know my opinion on how I think a particular issue will be dealt with. Sometimes, we may get case in which we know our client will have a tougher time meeting his or her objectives due to the courtroom he or she is in, or that the case might go a completely different way if heard somewhere else. At those instances, it is not uncommon for the client to ask “can we request a new judge?” In those instances, our response will almost always be, “no.”

In the Colorado divorce and custody world, you just don’t get to pick your judge. When a brand new case is filed, it just gets assigned, generally based on the order it comes into the court. In most instances that case will stay in the same division, even years after the initial divorce or custody matter is concluded. In theory, when post decree issues arise, such as modifications or contempt of court, they would be heard in the same court, by the same judge. The issue of changing judges arises when people come to us at this stage, having had prior bad legal experiences, whether related to disagreeing with a court ruling or just feeling like the judge does not like him or her. These are the two main concerns raised. However, these two issue are just not a basis for changing judges.

To get a new judge, there would need to be facts at hand giving rise to the notion that the court, or judge, might not be partial, or fair, and might, thus, have to recuse himself or herself from the case. For recusal, there will generally need to be some form of familiarity or personal tie with one of the parties or attorneys. This might occur if a divorce case comes before a judge who is family friends with one of the litigants. It might be needed in a case in which the judge was previously represented by one of the lawyers in front of him or her, or a former law partner. The types of instances in which recusal could be sought, or might be required, are few and far between.

As one does not get to pick his or her judge, it is important to make the right impression with the court at each step. Taking ridiculous positions, whether in motions or at trial, or being disrespectful to the court at hearing can potentially have lasting impacts for future hearings or litigation down the road. Though all factors which can affect a Colorado custody or divorce case cannot be mitigated or litigated away, there are things people can do to increase their chances of a better legal outcome. One is making that good impression and proceeding to court with professionalism and a sound legal approach.

Judges are human, too. They can remember parties to a family law case as being honest or dishonest, reasonable or unreasonable, meritorious or frivolous, and congenial or antagonistic. In many Colorado counties, judges do rotate out, meaning they move on to different courtrooms and different areas of the law. This can happen mid-stream in a case, or years down the road. Thus, the judge you start with may not be the judge you finish with. Realistically, administrative change is the most common way in which one gets a new judge. Of course, neither the divorce attorney, nor the litigant, has any control over this. In the vast majority of situations, who your judge will be is simply luck of the draw, and you will have no control over the issue. You just don’t get to change your judge. Logically, were people allowed to do so, there would be massive “forum shopping” in the legal arena. The judicial systems, and notions of fairness, cannot accommodate for such things.