How to Handle a Recusal

Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.

“I hope you will be able to answer this question quickly. We live in a rural town in Kansas. My daughter is in a very messy custody battle with her ex-husband who is now remarried. My question has to do with ethics and recusal. Here is the story…

About a year and a half ago, my daughter’s ex-in-laws hired a lawyer to pursue gaining custody of their Other Son’s children which were born out of wedlock. This lawyer was a neighbor of this family and attended their church, etc. Now this lawyer is a judge and he was assigned to the custody case of my daughter and her ex- husband (who this now-judge knows the family well, etc.) My daughter’s ex-husband wants to change from joint custody to full custody now that he is remarried.

My daughter told her attorney that she didn’t want this judge. Her attorney said that it was “too late” and she had to have this one.

Without doling out the whole messy story – isn’t there a conflict of interest here regarding this judge? Shouldn’t my daughter have been allowed to have a different judge?”

Question: Judges have to not only maintain actual impartiality, but also the appearance of impartiality. Having represented one of the parties probably should have recused himself without having been asked, e.g., “sua sponte” (Latin for “of one’s own accord”). The response of “too late” suggests that the daughter’s lawyer is not providing very good advice; it’s always appropriate for an attorney to ask to have the case be assigned to another judge once a potential conflict has arisen. This would most certainly be grounds for an appeal of any of the judge’s rulings, and could earn the judge some kind of disciplinary action from the state’s bar and/or the state court system’s ethics process. Your daughter needs to get another lawyer and determine what her options are at this point, including filing an ethics complaint with her current lawyer.