Rule Changes: Rule 6, Change of Judge as a Matter of Right

by Annette Burns on January 28, 2019

Rule 6 of the Rules of Procedure for Family Law Cases (notice of change of judge) has changed pretty dramatically.   Previously, the change of judge procedure was identical to that in the Rules of Civil Procedure. The family law rule simply said “See Rule 42, Rules of Civil Procedure”.  This is no longer the case. The Civil Rules made some pretty significant changes to how to change a judge in a civil case, and the Family Law Rules now have their own procedure, which is different than changing a judge in a civil case.  Do not rely on Civil Procedure Rule 42.1 or 42.2 to change your judge in a family law case — they are entirely different rules.

This post deals only with a notice of change of judge as a matter of right (without cause).   To notice a Judge for cause, see Rule 6.1.  

Rule 6, Family Law Rules, preserves the right of a party to have ONE free notice to change a judge (or other judicial officer) in a case, without cause.  The notice of changing a judge is valid only if not waived (see below) and only if it’s timely.

The ability to change a judge is waived if:

                The party has previously changed a judge in this action;

                The party agreed to this judge assignment;

                The judge has ruled on a contested issue or grants or denies a motion to establish a claim or defense;

                An RMC or scheduling or status conference has commenced; or

                An evidentiary hearing or trial has commenced.  [Rule 6(e)]

The notice must also be timely.  A notice of change of judge is timely if filed at least 60 days prior to a scheduled hearing.  If the hearing is scheduled with less than 60 days’ notice, which often happens, a notice is timely if filed at least three (3) days prior to the hearing.    If the hearing was scheduled with less than FIVE days’ notice, the notice of change of judge can be filed any time prior to the start of hearing.

If a new judge takes over a calendar and case, the notice of change of judge is timely if filed within ten (10) days after a party receives notice of the new judge assignment.    [Rule 6(d)]

 A party’s ability to notice a judge may be renewed after a case returns to the trial court after an appellate decision [Rule 6(f)] IF (a) the notice had not previously been used; and (b) the appellate decision requires a new hearing.    The notice of change is due not later than fifteen (15) days after the appellate court issues its mandate.  See Anderson v. Contes for a discussion of appellate decisions that are remanded to the trial court for less than a new contested hearing (i.e., a remand for additional findings), in which case the right to change a judge is NOT renewed. 

The main thing to remember regarding the Family Rules is that the procedure and timing to notice a change of judge is no longer the same as in the Civil Rules, and the Family Rules should be reviewed each and every time you’re considering filing a Notice of Change of Judge. 

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