GETTING YOUR JUDGE OFF YOUR CASE

If you believe your judge cannot hear your case impartially, your remedy is a motion for disqualification.

The Rule – According to MCR 2.003, the grounds for disqualifying a judge are:

 (a) The judge is biased or prejudiced for or against a party or attorney.

(b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in [Caperton v A T Massey Coal Co, 556 US 868 (2009)], or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.

(c) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

(d) The judge has been consulted or employed as an attorney in the matter in controversy.

(e) The judge was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years.

(f) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has more than a de minimis economic interest in the subject matter in controversy that could be substantially impacted by the proceeding.

(g) The judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; or

(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.

The court rule also provides for the timing of the filing of the motion for disqualification and the manner in which the motion should be decided. At the trial court level, all motions for disqualification must be filed within 14 days of the discovery of the grounds for disqualification. There are different time constraints when the disqualification issue is at the appellate level. The moving party must include all grounds for disqualification that are known at the time the motion is filed, and an affidavit must accompany the motion.

The Decision - In Ireland v Smith, 214 Mich App 235, 542 NW2d 344 (1995), the court held that the test for determining whether a trial judge should be disqualified is not only whether actual bias exists but also whether there is such a likelihood of bias or an appearance of bias that the judge would be unable to hold a balance between vindicating the interest of the court and the interest of the affected party. Even when a judge is personally convinced that the judge is impartial, disqualification is ordered when there are circumstances that cause doubt regarding the judge’s partiality, bias, or prejudice.

However, this remedy should be used sparingly. An unsuccessful motion to disqualify a trial judge may result in repercussions for the party and lawyer who requested the change. A judge would never admit this on the record, of course, but judges are people, and people have a hard time forgetting things like someone saying they cannot do their job.

CAN -- AND SHOULD -- MY CHILD TESTIFY?

If a child is old enough to express a preference, the court must take it into account.  A child over the age of six is generally old enough to express a reasonable preference.  Bowers v Bowers, 190 Mich App 51, 55-56; 475 NW2d 394 (1991).  A child’s stated preference does not automatically outweigh the other best interest factors. Treutle v Treutle, 197 Mich App 690, 694; 495 NW2d 836 (1992).  In fact, a change in a child’s preference regarding the custodial parent will rarely justify revisiting a custody determination because

““[t]he preferences of the children may be too easily influenced by the break-up of the marriage and competition for their love between the parents. If the children’s changed preferences required the grant of a motion for a new trial, the courts would be encouraging the parents to use their children as pawns in the marital break-up. This situation would place undue emotional pressure on the children and parents alike. We will do nothing which might encourage immature parents to use their immature offspring in a high stakes games of psychological roulette.” Curylo v Curylo, 104 Mich App 340, 349; 304 NW2d 575 (1981).”

 A stipulation of the parties not to interview a child is insufficient on its own.  “Regardless whether the parties wished for an interview, the court was affirmatively required to consider the child’s preference.”  306 Mich App 525; 858 NW2d 57 (2014).

However, an interview may not be necessary if the court is aware of the preference and takes it into account, or if the court determines that a child’s expressed preference could not override the other factors.   Consider Lambert v Farley, unpublished per curiam decision of the Court of Appeals (Docket No. 301646, June 7, 2011) (“given the trial court’s determination that this factor would not affect its evaluation of the children’s best interests in light of plaintiff’s burden, the trial court’s failure to interview the child does not require reversal.”) and Edge v Edge, unpublished per curiam opinion of the Court of Appeals (Docket No. 300668, August 23, 2011) (“it is abundantly clear that had the child expressed a preference, even for defendant, it would not have changed the court's ruling, given the court's overall statements and strong feelings on the matter of defendant’s hostility and the relationship of that hostility to the child’s best interests. Sinicropi, 273 Mich App at 182-183.”).

Calling a minor child as a witness in a domestic relations case involving the child’s parents is a red flag – it raises a question as to the competency of the calling parent (and his/her attorney) to recognize the danger to the emotional/psychological stability of the child.  The Court of Appeals has said that “courts should seek to avoid subjecting children to the distress and trauma resulting from testifying in court subject to crossexamination.”  Surman v Surman, 277 Mich App 287, 302; 745 NW2d 802 (2007).  An exception to this was identified in Breneman v Breneman, 92 Mich App 336; 284 NW2d 804 (1979), which held that the court may allow a minor child of the parties to testify in open court with regard to alleged abuse and mistreatment inflicted on him by one of his parents.  This exception arises when the child is the only other witness to the abuse and refusing to call the child could deny a parent due process.