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COMMENTARY
Recusal in the context of domestic
violence cases where there are children
Toby Kleinman and Daniel Pollack｜ October 11, 2022
States have canons of judicial conduct as well as rules governing
circumstances when judges should recuse themselves from hearing
cases. The rules may provide for judges to remove themselves and/or for
litigants or their attorneys to seek their removal. The difficulty is what to
do where judges do not remove themselves but counsel or a client
believes a judge is not impartial.
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This is particularly difficult in domestic violence cases. Children do not
choose their parents. Both parents seemingly come to court as co-equals,
with equal constitutional rights to parent their children. Simultaneously,
parents have an obligation to raise their children to be safe and secure in
their homes. When there is domestic violence, courts must understand
these concerns in such a way as to make clear that they are still impartial
arbiters. They must also recognize the negative impact of domestic
violence on children even where the children themselves have not been
personally assaulted.
Of course, every state’s recusal is unique. Using New Jersey Judicial
canons and rules as an example, Rule 1:12-1(g) requires disqualification
of a judge, on the court’s own motion, “when there is any reason which
might preclude a fair and unbiased hearing and judgment, or which
might reasonably lead counsel or the parties to believe so.” The Rules
also permit “[a]ny party, on motion made to the judge before trial or
argument and stating the reasons therefor,” to move for recusal. R. 1:12-
2. Similar to most other states, a judge must be removed if “a fully
informed person might reasonably question the impartiality of [the]
judge.” State v. Dalal, 438 N.J. Super. 156, 161 (App. Div. 2014), certif.
granted, 221 N.J 216 (2015) (quoting Hundred E. Credit v. Eric Schuster,
212 N.J. Super. 350, 358 (App. Div.), certif. denied, 107 N.J. 6 (1986)).
Critically, it is not the actual impropriety that is the issue, but the
appearance of impropriety that governs. See Canon 2(A) of the New
Jersey Code of Judicial Conduct. Indeed, judges are supposed to maintain,
enforce, and observe “high standards of conduct so that the integrity and
independence of the judiciary may be preserved” and “act at all times in
a manner that promotes public confidence,” Canon 2(A), and “must avoid
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all impropriety and appearance of impropriety,” Commentary on Canon
2. NJ Code of Judicial Conduct. That standard requires judges to “refrain
… from sitting in any causes where their objectivity and impartiality may
fairly be brought into question.” Offutt v. United States, 348 U.S. 11, 14,
(1954)). “Thus, judges must avoid acting in a biased way or in a manner
that may be perceived as partial. To demand any less would invite
questions about the impartiality of the justice system and thereby
‘threaten[ ] the integrity of our judicial process.” (Citation
omitted).” DeNike v. Cupo, 196 N.J. 502, 514-15 (2008).
Treating litigants equally and appearing impartial where there has been
a recognition of domestic violence by a court may require, for example,
the use of different language to a perpetrator than to a victim. A court
may, for instance, remind a perpetrator of harm or injury to the victim,
and the court may remind a victim of their ability to seek assistance
through police and the courts if there are violations of an order of
protection. However, if a judge makes negative assumptions about a
victim that, for example, a victim used the legal system to gain advantage
in a custody case and the court admonishes that victim “as if” that were
accurate where domestic violence was in fact found, this might lead a
reasonable person to believe the court was not impartial.
When domestic violence is witnessed by a child, there can be long lasting
effects on the child. If a court were to rely upon unproved assertions
such as “children are always better off with two parents,” rather than
giving weight to the impact of domestic violence on the child, it may
show bias and partiality.
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The purpose of judicial disqualification provisions “is to maintain public
confidence in the integrity of the judicial process, which in turn depends
on a belief in the impartiality of judicial decision making.” Even a
“righteous judgment” will not find acceptance in the public’s mind unless
the judge’s impartiality and fairness are above suspicion. “In other
words, judges must avoid acting in … a manner that may be perceived as
partial,” otherwise the integrity of the judicial process will be cast in
doubt[.] In re Advisory Letter No. 7-11 of the Supreme Court Advisory
Comm., 213 N.J. 63, 70 (2013).
Recusal motions are troubling to make. Lawyers don’t want to a make
recusal motions where they even appear to be frivolous. On the other
hand, if there is the appearance of partiality by a court then a motion is
warranted, and, even if denied, alerts a court to the appearance of bias.
That said, if a recusal motion is made and denied there may be grounds
for interlocutory appellate relief.
An attorney may hesitate to seek recusal of a judge out of fear of
potential backlash from the court in the present or future cases. See the
unpublished opinion of MGS v. KF, No. A- 0480-20, wherein the backlash
by the court was seen as so profound that the appellate court reversed
the court’s denial of recusal.
Again, using New Jersey as an example, Canon 3(C)(1) of the Code of
Judicial Conduct provides that “[a] judge should disqualify himself or
herself in a proceeding in which the judge’s impartiality might
reasonably be questioned.” Similarly, Rule 1:12-1(f) directs judges not to
sit in any matter “when there is any … reason which might preclude a fair
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and unbiased hearing and judgment, or which might reasonably lead
counsel or the parties to believe so.”
Attorneys must carefully scrutinize what a judge has said or done before
making a motion for recusal, but one should not fear making such a
motion where it is appropriate. A party might react differently than their
lawyer. Their perception of bias must be considered as well. Some signs
of bias may include:
• Negative comments about prior cases being similar to the one at bar
• How a court limits cross-examination of a party’s witness or the party
themselves whereby the other party’s witnesses may be treated
differently
• Occasions when a court negates testimony of witnesses prior to
complete testimony, or when it completely ignores witnesses in its
reasoning
• Court accepts reports as evidence absent appropriate cross
examination
• Court permits unscientific theories as evidence and gives weight and
positive statements to them prior to trial
The court’s reasoning may be important especially if it relies upon the
affidavit of someone as to the appearance of bias, without acknowledging
any pre-disposition. Many lawyers avoid recusal motions at all costs
because, in part, they want a court’s continuing respect. On the other
hand, zealous advocacy sometimes requires an attorney’s discomfort to
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properly represent a client. Attorneys have a responsibility—indeed, an
obligation to the client—to make unfairness a matter of record.
Toby Kleinman, a New Jersey attorney and partner at Adler & Kleinman,
has litigated domestic violence, child custody and abuse cases, and has
been a consultant in cases dealing with domestic violence and child abuse
in over 30 states. Daniel Pollack, MSW, JD is a professor at the School of
Social Work at Yeshiva University in New York. They can be reached
at toby@adlerkleinman.com and dpollack@yu.edu, respectively.
Original link:
https://www.law.com/newyorklawjournal/2022/10/11/recusal-in-the-
context-of-domestic-violence-cases-where-there-are-children/