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”.
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.” 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.
“As a matter of right”
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.) 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.
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.
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.
To read this article in Spanish, click here.