Legal Question in Family Law in California

I have a child support arrears case where I was initially ruled against by Judge A. My lawyer took it to the appeal court and we susequently won a reveral. Now we are back in court in attempts to collect on the arrears and have been appinted the same judge who initially ruled against me. Sounds like a conflict of interest to me, but my attorney says he looked up the statute and we cannot have him removed without going to the appellate court again. I called down to the appeals department myself and was told there was a California code 170.6 that might provide some relief in this area. Can someone let me know if this applies to family law as well, and if so how can I go about having our case reassigned to another department? Thanks CMB


Asked on 9/14/12, 11:46 am

1 Answer from Attorneys
Anthony Roach Law Office of Anthony A. Roach

Family lawyers get smarmy and tell people all the time that the Code of Civil Procedure does not apply to family law cases, but the truth of the matter is it actually does. The Courts of Appeal and the California Supreme Court have consistently ruled that the Code of Civil Procedure applies to family law cases, unless there is a specific Family Code statute directly on point.

"A motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter. Notwithstanding paragraph (4), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so. The motion shall be made within 60 days after the party or the party's attorney has been notified of the assignment." (Code Civ. Proc., sect. 170.6, subd. (a)(2).)

I don't know the exact details of your reversal. This blog explains that the reversal must be for a new hearing on disputed facts, or law, and not to perform a ministerial act. http://www.calblogofappeal.com/2008/09/15/peremptory-challenge-to-judge-after-remand-has-its-limits/

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Answered on 9/14/12, 12:06 pm


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