Yes. A private judge in a California divorce is a temporary judge held to the same fairness rules as a courtroom judge. A spouse can seek disqualification when a reasonable person would doubt the judge’s impartiality, such as an undisclosed tie to the other side’s lawyer.
You chose a private judge for speed and discretion. You, your spouse, and your lawyers agreed on the name.
Months into the case, you learn your private judge has worked on other cases with your spouse’s lawyer. Judges and lawyers work together all the time, and that is not a problem on its own. What bothers you is that nobody told you.
Now the judge you picked will decide where your children live or how your property is divided.
Can that judge still be fair? Was this judge chosen for a reason? And are you even allowed to ask for someone else?
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Can You Remove a Private Judge After You Agreed to One?
Yes. A private judge in a California divorce is a temporary judge that you and your spouse hire and pay. The law holds that person to the same fairness standard as a judge in a public courtroom.
Here is how the arrangement starts. You and your spouse sign a written agreement naming the proposed judge, called a stipulation, and file it with the court. The presiding judge must approve it. The presiding judge oversees the superior court’s administration and may designate another judge to handle the appointment.
Once the presiding judge approves, the newly appointed private judge takes an oath and promises in writing to follow the judicial ethics rules and the court rules. The appointment subjects the temporary judge to applicable judicial ethics and disqualification requirements.
From then on, Rule of Court 2.831 requires the judge to step aside whenever those ethics rules call for it.
So, if you learn something that raises concerns about the judge’s impartiality, your agreement to the appointment does not prevent you from challenging the judge’s continued involvement in your case.
California gives you two options, and either spouse can start one. One asks the court to disqualify the private judge. The other asks the court for permission to withdraw your agreement to that judge’s appointment.
Ask the Court to Remove the Judge
You file a sworn written statement asking the court to remove the judge. The law calls it a verified statement of disqualification. It must explain the specific facts supporting a legal ground for disqualification, such as bias or a conflict of interest.
Any party can file one, so your spouse does not have to agree. Your spouse or their attorney must be served with a copy of the statement, and the private judge must also be served as the law requires.
Angelina Jolie used this route, and an appellate court ordered her private judge removed. More on this later.
Ask the Presiding Judge to Release You From the Agreement
Here you ask the presiding judge, or a judge they designate, to let you withdraw your agreement to that private judge’s appointment. The law calls it a motion to withdraw the stipulation. You support it with a sworn statement of facts showing good cause—a legally sufficient reason for withdrawing.
Your spouse does not have to agree, but the court must approve your request. You must serve the motion on your spouse or their attorney and provide a copy to the private judge.
The rule does not give an exhaustive list of what counts as good cause. The court evaluates your reasons, but disagreeing with a ruling or arguing that it contains a factual or legal error does not, by itself, establish good cause to withdraw the stipulation.
For example, discovering an undisclosed close friendship, romantic relationship, or significant business tie between the judge and your spouse or their lawyer may support a request. Whether it justifies withdrawal depends on the circumstances.
What Is the Difference Between Disqualification and Withdrawing Your Agreement?
Disqualification: You must show a legal reason why the judge should not continue hearing your case, such as bias or a conflict of interest.
Example: You discover that your private judge has a financial interest in your spouse’s business. That relationship may provide grounds for disqualification because it raises concerns about the judge’s impartiality.
Withdrawing your agreement: You ask the court to release you from your agreement to use the private judge. You must show good cause, which does not necessarily require proving bias.
Example: Your private judge repeatedly cancels hearings, causing significant delays in resolving urgent custody or financial matters. Even without evidence of bias, those circumstances may support a request to withdraw your agreement.
The key difference: Disqualification focuses on whether the judge can fairly or legally hear your case. Withdrawal focuses on whether there is sufficient reason to end your agreement to use that judge. The same circumstances may support both requests.
If either request succeeds, the case must be reassigned. If you and your spouse want another private judge, you generally need to agree on that person and obtain court approval of the new appointment.
What Counts as Grounds to Disqualify a Private Judge?
A private judge must step aside when a fair-minded person who knows all the facts might reasonably doubt the judge can be fair.
What counts is how the situation looks from the outside. That standard comes from Code of Civil Procedure § 170.1, and Canon 6 of the Code of Judicial Ethics adds rules for private judges.
Possible grounds include:
- Bias or its appearance. Statements, conduct, or relationships that would make a reasonable person doubt the judge’s impartiality.
- A financial stake. An interest in your spouse’s business or another disputed asset, including one held by the judge’s spouse or minor child at home.
- Family or close personal ties. A family tie, close friendship, or other personal connection with a spouse or a lawyer in your case.
- Earlier legal work. Serving as a lawyer in your case, or advising or representing either spouse in the past five years.
- Personal knowledge. Knowing disputed facts from outside the case, or being, or having a close relative who is, a likely key witness.
- A practice built around one side. A family law lawyer who offers to represent one category of litigants—such as only men or only women—in 90 percent or more of the family-law cases in which the lawyer appears.
- Paid work conflicts. The judge has current or recent paid work arrangements, or discussions about future work, with either party or a mediator or arbitrator they direct you to use or may select for your case.
- A physical impairment. A condition that keeps the judge from properly seeing or hearing the evidence or running the hearing. A diagnosis alone does not count.
- Campaign contributions. Contributions from a spouse or lawyer to the judge’s judicial election campaign may require disqualification, depending on the amount, timing, and circumstances.
- The judge’s own doubt. The judge believes stepping aside serves justice or doubts the ability to stay impartial.
Some grounds are specifically defined by law. Others depend on whether the circumstances would cause someone to doubt the judge’s impartiality. Some grounds can be waived after proper disclosure, usually through a written waiver signed by the parties and their attorneys and filed with the court.
Personal bias concerning a party, prior service as an attorney in the matter, and having been a material witness in the matter cannot be waived.
A relationship may call for disclosure without requiring removal. A ruling you dislike is not a ground for removing the judge. If you think the judge got the law wrong, you may address it through an available appeal or other review procedure, subject to the rules and deadlines that apply.
What if the Private Judge Never Disclosed a Relationship?
A private judge who fails to disclose a relationship with a party or lawyer can be disqualified. The same reasonable-person test applies.
Under Rule 2.831(d), the temporary judge must disclose within five days after designation. If the judge is unaware of the designation or a disclosable matter at that time, disclosure must follow as soon as practicable.
The judge must make relevant disclosures in writing or on the record throughout the appointment. Any new professional relationships involving the same attorneys that could raise impartiality concerns must be disclosed as they arise.
Jolie v. Superior Court (2021) 66 Cal.App.5th 1025 shows what happens when a judge skips that duty. Angelina Jolie and Brad Pitt chose retired judge John Ouderkirk to decide their custody dispute.
At the start, he disclosed earlier cases with both sides’ lawyers. did not promptly disclose two additional matters involving Pitt’s lawyers. Jolie’s lawyers learned about them in July 2020 after requesting updated disclosures.
The judge assigned to decide the challenge rejected it as untimely and found no sufficient basis for disqualification. The Court of Appeal disagreed.
The Court of Appeal disagreed. It held that the undisclosed engagements, together with the judge’s failure to volunteer them, would lead an objective person to doubt his impartiality, and it ordered him disqualified.
Our managing partner and senior trial attorney, Alphonse F. Provinziano, told The Sun the same thing: working with the same lawyers is not automatically improper, and the failure to disclose was the problem.
His full take is in our recap of the Jolie-Pitt divorce.
How to Disqualify a Private Judge Step by Step
1. Identify your grounds and act promptly. Gather the facts supporting your concerns. If you believe the judge should be disqualified, your attorney may ask the judge to step aside voluntarily. However, this should not delay a formal challenge, which must be raised at the earliest practicable opportunity.
2. File the appropriate request. If the judge does not step aside, you may file a verified statement of disqualification explaining the legal grounds. Alternatively, you may file a motion to withdraw your agreement to the appointment, supported by a declaration showing good cause. Neither request requires your spouse’s agreement.
3. Serve the required documents. Both procedures require serving your spouse or their attorney. A disqualification statement must also be personally served on the judge, or on the judge’s clerk when the judge is present in the courthouse or in chambers. For a withdrawal motion, provide the private judge with a copy.
4. Have the challenge decided. A contested disqualification is generally decided by another judge, while a motion to withdraw your agreement is heard by the presiding judge or a designated judge. Successfully removing the judge or withdrawing the agreement does not automatically overturn earlier rulings.
5. Act quickly if your challenge is denied. A disqualification ruling cannot be appealed through the ordinary appeals process. Instead, you must file and serve a writ petition, a formal request asking the Court of Appeal to review the decision, within 10 days after service of written notice of entry of the ruling, subject to applicable extensions. A denied motion to withdraw your agreement may have different review procedures.
How Fast Do You Have to Act?
For a temporary judge, no fixed number of days applies. The statute requires you to present the statement “at the earliest practicable opportunity” after learning of the circumstances that may disqualify the judge.
The clock starts when you learn the facts, not when the problem began. A claim of personal bias has to be raised on time like any other, so a spouse who waits can lose it. Act promptly after discovering the relevant facts.
Waiting after learning the relevant facts, including continuing with hearings without raising the issue, can cause you to lose the right to pursue the challenge.
What Happens to Rulings the Judge Already Made?
Filing a disqualification challenge does not automatically cancel the judge’s rulings. It generally limits the judge’s authority to make further decisions, although exceptions apply. If an already-started trial or hearing continues and the judge is later disqualified, rulings made after you file the challenge must be set aside.
Earlier rulings are treated differently. If you withdraw your agreement because you discovered grounds for disqualification after the judge had already made decisions, those rulings generally remain in place unless there is good cause to overturn them. Other disqualification circumstances may have different consequences, so your attorney should assess which orders you can challenge.
In Jolie, the Court of Appeal said any ruling the judge made while the challenge was pending would be void. Pitt agreed the disqualification reached back to August 7, 2020.
As Alphonse described the aftermath of Jolie, the parties returned to their November 2018 custody arrangement.
Other Situations That May Affect Your Challenge
Several situations arise that the basic rules do not address
- Privacy and public records. Private judging does not automatically make your case confidential. Court filings and proceedings that would ordinarily be public generally remain accessible. If privacy is important to you, consider how a public challenge could affect your family, business, or reputation.
- Changing attorneys. If you or your spouse hire a new attorney, the private judge may need to disclose relevant professional relationships with that attorney or their firm. However, changing lawyers does not automatically justify disqualification or restart deadlines for previously known conflicts.
- A mediator becoming your private judge. If someone who previously mediated your dispute later serves as the judge, concerns may arise about confidential information they received. Whether this creates grounds for disqualification depends on the circumstances and any agreements or waivers. Mediation confidentiality rules may also limit what evidence you can use to support a challenge.
- Disputes after your divorce is finalized. If custody, support, or enforcement issues arise later, check whether your original agreement and the court’s appointment order authorize the private judge to continue hearing your case. That authority does not necessarily end when your divorce judgment becomes final.
Should You Hire a New Attorney to Challenge a Private Judge?
Not necessarily. A lawyer’s prior work before the judge does not by itself prevent that lawyer from raising a challenge. An independent second opinion may help if you are concerned that your lawyer’s relationships or interests could affect the advice you receive.
Before you hire anyone, ask the same questions you would ask the judge. How many matters has the lawyer had before this judge?
Has the lawyer ever sat as a private judge for the other side’s lawyer, or the reverse? Is there any referral or business relationship with either? A new lawyer’s own ties can create the problem you are trying to fix.
