In a contested Chicago divorce, a judge has enormous power your future and the future of your family. Therefore, you’re going to want to a judge who will fairly consider all the factors in your divorce case. If you believe the judge you have cannot rule fairly you must find out if you can change your judge in Cook County, Illinois.
In Cook County, Illinois when you file a petition within the domestic relations division you will be assigned to a judge’s calendar on a random basis and according to what judicial district you filed the divorce in. If you object to that judge you may request a new judge for one of two reasons: 1) “For cause” or 2) “As a matter of right”.
Substituting A Judge For Cause In An Illinois Divorce
Pursuant to 735 ILCS 5/2-1001(a)(1), you can file a motion with the Circuit Court to substitute your judge if your original judge is a party to the case, otherwise has an interest in the case, would have material testimony for the case, has acted as counsel in the matter, or is related to your counsel in the matter. You must be able to allege how this judge is so prejudiced against you that you would not be able to have a fair trial for your divorce because of his or her deep-seated favoritism or antagonism. Our courts have identified that this is a “heavy burden,” and the decision to substitute a judge will “not be made lightly.”
“Judges…are presumed impartial, and the burden of overcoming the presumption by showing prejudicial trial conduct or personal bias rests on the party making the charge.” In re Marriage of O’Brien, 2011 IL 109039
“To conclude that a judge is disqualified because of prejudice is not, of course, a judgment to be lightly made.” People v. Vance, 76 Ill. 2d 171, 179 (1979)
You must, for instance, allege particular statements that the judge had made through which he or she had “prejudged” your case such that you effectively could not have a fair trial. The judge who you seek to have replaced would have to turn the decision on the motion to another judge.
“To meet the statute’s threshold requirements, a petition for substitution must allege grounds that, if true, would justify granting substitution for cause. Where bias or prejudice is invoked as the basis for seeking substitution, it must normally stem from an extrajudicial source, i.e., from a source other than from what the judge learned from her participation in the case before her. A judge’s previous rulings almost never constitute a valid basis for a claim of judicial bias or partiality.” In re Estate of Wilson, 238 Ill. 2d 519, 554 (2010) (citations omitted).
You would have to show that judge exhibited “such deep-seated favoritism or antagonism that would make fair judgment impossible.” Eychaner v. Gross, 202 Ill. 2d 228, 281 (2002)
Usually, people want to switch judges after the judge rules in the other party’s favor. That is never a good enough reason to switch judges.
“A judge’s rulings alone almost never constitute a valid basis for a claim of judicial bias or partiality. Allegedly erroneous findings and rulings by the trial court are insufficient reasons to believe that the court has a personal bias for or against a litigant. Rather, the party making the charge of prejudice must present evidence of prejudicial trial conduct and evidence of the judge’s personal bias.” Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002).
In cases where the judge has some kind of personal involvement, it’s usually up to the judge themselves to determine if they should remove (also known as “recuse”) themselves. Pursuant to Illinois Supreme Court Rule 63(C)(1), “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned,” including instances where “the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Ill. S. Ct. R. 63(C)(1)(a) (eff. Feb 2, 2017). “Whether a judge should recuse himself is a decision in Illinois that rests exclusively within the determination of the individual judge, pursuant to the canons of judicial ethics found in the Judicial Code.” In re Marriage of O’Brien, 2011 IL 109039
Judges do not like to say “yeah, I might be biased.” So, expect a judge to let your motion for substitution for cause go to hearing in front of another judge…who probably knows the judge, likes the judge and respects the judge.
“Upon the filing of a petition for substitution of judge for cause, a hearing to determine whether the cause exists shall be conducted as soon as possible by a judge other than the judge named in the petition.” 735 ILCS 5/2-1001(a)(3)
A judge you want to substitute can even deny you this hearing if they find an error in your motion to substitute for cause.
“A judge may deny a petition without referring it to another judge if it fails to meet threshold requirements. Specifically, the trial court may deny the petition if it: (1) was not timely filed; (2) failed to include an affidavit; or (3) alleged bias not stemming from an extrajudicial source” Deutsche Bank National Trust Co. v. Nichols, 2013 IL App (1st) 120350
If an Illinois judge is not willing to remove themselves for cause or have a colleague rule that they should be removed from a case for cause, you cannot request an immediate appeal. You must wait for the entire case to be over or for a legitimate interlocutory appeal to be filed for the appeals court to address the issue of a substitution of judge. In re Marriage of Arjmand, 2024 IL 129155
Then, if the appeal grants the substitution of judge, all orders entered after an erroneous denial of substitution are a nullity and must be vacated. Palos Community Hospital v. Humana Insurance Co., 2021 IL 126008, ¶ 34
If the appeal is successful, an Illinois appeals court can remove that judge via reassignment on remand.
An Illinois appeals court can “make any other and further orders and grant any relief, including a remandment[]” Ill. Sup. Ct. R. 366
If a “judge has expressed a disregard for the evidence presented, it would be essentially worthless to send the case back to the same judge.” People v. Serrano, 2016 IL App (1st) 133493
“Petitioner would be prejudiced were we not to assign the case to a new judge on remand. Therefore, in the exercise of our discretion under the supreme court rules, we find that the interests of justice would be best and most efficiently served by the case being assigned to a different judge on remand.” People v. Montanez, 55 NE 3d 692 – Ill: Appellate Court, 1st Dist., 2nd Div. 2016
“[W]here the trial judge has so clearly communicated its belief that only one outcome is possible despite contrary evidence and law, we believe that the interests of justice are best served by remanding the case to be heard by a different trial judge to remove any suggestion of unfairness.” Murphy v. Kinnally Flaherty Krentz Loran Hodge & Masur, P.C., 2023 IL App (2d) 230019 (citations and quotations omitted)
Substituting A Judge As A Matter Of Right In An Illinois Divorce
If you don’t have a “cause” to substitute your judge, such as one of the above circumstances, 735 ILCS 5/2-1001(a)(2) allows you to file a motion for substitution “as of right” before that judge has made a major, “substantive” decision regarding your case. (Technical matters like scheduling are likely not to be one of these.)
“A ruling that directly relates to the merits of the case is considered a ruling on a substantial issue” Chavis v. Woodworker’s Shop, Inc., 425 Ill. Dec. 786, 788 (Ill. App. Ct. 2018)
The requirement that a substantive decision be made before a substitution for cause is allowed is absolutely required.
“The right to substitution of judge is absolute when properly made, and the circuit court has no discretion to deny the motion.” Cincinnati Insurance Co. v. Chapman , 2012 IL App (1st) 111792, ¶ 23, 363 Ill.Dec. 401, 975 N.E.2d 203.”
Judges will make recommendations via pretrial but this is not to be considered a substantive decision for the purposes of substitution as a matter of right. Palos Community Hospital v. Humana Insurance Company, Inc., 2021 IL 126008 (IL 2021)
If your motion for substitution of judge is granted, you will then be assigned to another judge in the district on a random basis.
You will only be allowed to file a motion for substitution of judge as a matter of right once in your case.
“Each party shall be entitled to one substitution of judge without cause as a matter of right” 735 ILCS 5/2-1001(a)(2)(i)
Substituting without really substituting
Additionally, some judges in Cook County’s 1st district (The Daley Center) are on a team calendar (A collection of 5 judges who could possibly hear your case with a primary judge assigned to it). When you substitute the judge as a matter of right, you will be assigned to another judge on that same team calendar, you cannot leave the team calendar as a matter of right.
If your case was filed in Skokie, Rolling Meadows, Maywood, Bridgeview or Markham, you can move your case to a new judge downtown without filing a motion for substitution. You must do so when you file your initial appearance, you cannot wait like you could in the previous examples.
This right is granted by Cook County Court Rule 13.3(f) which reads:
“(f) Removal to Daley Center – Domestic Relations Division actions may be transferred from suburban municipal district court locations to the Richard J. Daley Center as follows:
(i) Pre-Judgment Cases – Removal of a pre-judgment case filed within a suburban municipal district shall occur by the sole action of the Respondent when the Respondent files an appearance, together with the District Transfer form. Absent leave of court, district transfers must be filed no later than 30 days after service of summons, not counting the day of service. The appearance fee in the suburban district shall be waived if Respondent provides proof that Respondent has filed a case in the Richard J. Daley Center. Upon a motion to consolidate where there is a case pending in the Richard J. Daley Center, the pre-judgment case shall be transferred from the suburban district to the Presiding Judge of the Domestic Relations Division to be consolidated with the prior pending matter in the Daley Center. Cases removed from the suburban municipal district pursuant to this paragraph shall be transferred to the Presiding Judge of the Domestic Relations Division in the Richard J. Daley Center for random assignment to a team or individual judicial calendar within the Richard J. Daley Center. Such a transfer shall not be deemed an exercise of statutory rights for Substitution of Judge. [Amended, effective July 21, 2015.]”
This means you get a new judge in the Daley Center and you still have your one “as of right” substitution if you don’t like the judge in the Daley Center.
When Can You No Longer Change Judges?
A motion for substitution of judge can be filed “before the judge to whom it is presented has ruled on any substantial issue in the case.” 735 ILCS 5/2-1001
Substantial issues are real decisions like a judge deciding temporary custody matters or child support issues. An order continuing the case (the most common kind) is not a substantial order.
In the end, a substantial issue is in the eye of the beholder and the beholder is always the judge you are trying to substitute.
Once a substantial issue has been ruled on, you cannot substitute a judge except for cause…and good luck getting a judge to admit he or she should be substituted for cause.
Most orders are agreed by the parties with little to no input from a judge. Still, an agreed order remains a ruling on a substantial issue even if the judge did not truly opine on the substantial issue.
“[T]rial courts maintain discretion concerning whether to issue an order based on an agreement by the parties. If a court issues such an order, it is the court, and not the parties, that has so ruled. We find that a court order based on an agreement by the parties may be, nonetheless, a substantive ruling.” In re DM and ROM, 395 Ill.App.3d 972 (Citations Omitted)
If you have concerns about your judge, please contact my Chicago, Illinois law firm to schedule a free consultation with an experience Chicago divorce lawyer.
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