Judge Questions In A Divorce Trial

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Can A Judge Ask Questions In An Illinois Divorce Hearing Or Trial?

Judge Questions In A Divorce Trial

Divorce court is a scary place. Your entire life is under examination as you unwind your relationship with the person who was, formerly, your closest partner in that life. When you walk into a divorce court in Illinois, your divorce lawyer has prepared you for their direct examination question and possible cross examination questions from the opposing counsel. But, what about the judge? Will the judge just quietly listen to the testimony of you, your spouse and the other witnesses? Or will the judge be asking questions as well?

Illinois Judges Asking Questions During A Divorce Hearing Or Trial

A judge is allowed to question any witness during the course of an Illinois trial.

“The court may interrogate witnesses, whether called by itself or by a party.”  Ill. R. Evid. 614

These questions are usually in the form of an interjection for clarity after a question from one of the attorneys. But, the judge can really ask anything they want of whomever they want.

“It is well established that a trial judge has the right to question witnesses in order to elicit the truth or to clarify issues which seem obscure.  The trial judge’s examination must be conducted in a fair and impartial manner, without indicating bias or prejudice against either party. Whether the trial judge’s questioning is proper depends on the circumstances of each case and rests largely within the discretion of the trial court.” People v. Williams, 670 NE 2d 638 – Ill: Supreme Court 1996 (Citations Omitted)

“It is well settled that a trial judge has discretion to question a witness to elicit the truth or to bring enlightenment on material issues which seem obscure, as long as he does so in a fair and impartial manner.” People v. Taylor, 829 NE 2d 890 – Ill: Appellate Court, 1st Dist., 2nd Div. 2005

An Illinois judge can question a witness but a judge cannot prejudge the parties while doing so.

“It is improper, however, for the judge to assume the role of an advocate or to suggest through comments or questions an opinion regarding the facts of the case or the credibility of witnesses.” People v. Falaster, 670 NE 2d 624 – Ill: Supreme Court 1996 (Citations Omitted)

Illinois Judges Calling Their Own Witnesses During An Divorce Hearing Or Trial

An Illinois judge can even call its own witnesses.

“The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.”, Ill. R. Evid. 614

While this sounds bizarre it actually happens all the time in Illinois family courts. An Illinois domestic relations judge will often appoint a Guardian Ad Litem and investigatory experts. The Guardian Ad Litem and/or investigatory expert will then report back their findings to the court.

Guardian Ad Litems are appointed and called by courts for reports and testimony in almost every case where there is a custody dispute.

“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

Court professionals are called by Illinois divorce courts for reports and testimony when a level of expertise, usually psychiatric expertise, is needed.

“Court’s professional. The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects. A professional consulted by the court shall testify as the court’s witness and be subject to cross-examination.” 750 ILCS 5/604.10(b)

Upon calling their own witness, an Illinois divorce judge usually allows the attorneys to question the witness first before the judge proceeds to ask any questions themselves.

Objecting To A Judge’s Questions During An Illinois Divorce Trial

If a judge is asking questions, surely the judge thinks those questions are appropriate. So, any objection you make to those questions are likely to be overruled.

Still you are allowed to object to a judge’s questions during an Illinois trial or hearing.

“Objections to the calling of witnesses by the court or to interrogation by it may be made” Ill. R. Evid. 614

Judges are subject to the same objections that an opposing counsel would be subject to.

“[B]y order of the Illinois Supreme Court, the Illinois Rules of Evidence will govern proceedings in the courts of Illinois” Ill. R. Evid. preamble

The rules of evidence apply to everyone…including judges.

This means you can object for lack of personal knowledge, speculation, argumentative, calls for hearsay, calls for privileged information, calls for an opinion, relevance, assumes facts not admitted into evidence, etc.

Often, the point of an objection is not to keep evidence out of the purview of the fact-finder, the judge, but rather to give yourself another “bite at the apple” should the judge rule against you.

Actually, an objection gives you three extra bites at the apple if you disagree with the judge’s final ruling.

The objection may correct the judge’s behavior in the moment (which seems unlikely).

The objection will allow you to file a post-trial motion regarding that objection where the judge might say, “You know, I was wrong when I did that,” months after the incident occurred (this is more common than you’d think).

And finally, the objection allows you to appeal the ruling.

“Both an objection at trial and a written post-trial motion raising the issue are necessary to preserve an error for appellate review.” Orzel v. Szewczyk, 908 NE 2d 569 – Ill: Appellate Court, 1st Dist., 1st Div. 2009

In reality, a judge’s questions are a window into the judge’s thought process. Instead of allowing the judge to question a witness, you should immediately intuit what the judge wants to know and ask questions that provide the answer…in a way that benefits you.

Being prepared for opposing counsel’s questions is hard enough in an Illinois divorce trial. Preparing for a judge’s questions and gracefully countering them is a whole other level. If you’d like to learn more, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.