Each party, as a matter of right in a divorce action, is entitled to change the judge assigned to a case by filing what is called a “peremptory challenge.” It must be filed for any reason, within a specific time frame, at a cost of $450.00. Generally, each party may exercise only one such challenge.
The reasons why a party, or more likely the attorney, will choose to file a peremptory challenge may vary. An attorney could have a personality conflict with a judge, the judge may have a perceived bias on an important issue in the case, there may be uncertainty as to how a judge may rule on a specific issue of the case, the judge may be new to the bench and his or her positions on certain issues unknown, and in some cases it may be used solely for the purpose of causing a brief delay in the divorce proceeding.
Some new family court judges will be perempted relatively often until attorneys can see their case management skills and how they adjudicate specific issues. Once a judge has a “track record” and the attorneys have acquired a certain comfort level with a specific judge, the peremptions normally will decrease over time. If a judge’s peremption rate does not decrease over time, then the peremptions may be attributable to a personal issue with the judge or an overall lack of confidence in a judge’s ability manage his or her calendar or properly adjudicate specific legal issues.
Although deciding whether to preempt a specific judge in order to take the chance with a different judge it is an art, more than a science, most experienced family law lawyers know which judges are favorable for specific issues or strategies and will advise their clients when to exercise this right.