How does one go about filing a motion to reconsider in a CA superior court child custody case?

Question

At a trial setting conference my ex began making allegations in court. Nothing was ever served regarding the allegations nor did he file anything in court. He just started blurting out alegations which, if given the opportunity I could prove untrue. At first the judge told him she couldn't do anything since a third party involved in the allegations wasn't even present and the allegations weren't the issue before the court. He persisted and she gave in and made a ruling. I had no chance to answer to the allegations nor opportunity to present evidence on my behalf. I believe her order violated my rights to due process. I would like to make a motion to reconsider and have the judge removed from the case. Is this possible?

Answer 1

Firstly, a motion to reconsider is not the proper vehicle for this. A motion to reconsider can only be granted based upon the finding of new evidence. This situation doesn't really necessarily apply. And keep in mind that the same judge that already screwed you once is the one who will be hearing the motion to reconsider.

As for having the judge removed, you can't use a 170.6 peremptory challenge because the judge has already heard a motion on your case. That leaves a challenge for cause under CCP 170.3. Those are outrageously difficult, dangerous and a very specific procedure needs to be followed. I have personal experience with this as I tried to do a 170.3 motion in my own divorce case. Needless to say, it didn't work. Regardless, if you're set on trying it, feel free to contact me and I'll provide you a copy of my own motion so that you can see how it's done.

There are various other options available to you which I won't go into here because I would need a lot more information. Something in what you say doesn't seem right. The court shouldn't be taking testimony at a trial setting conference. Something else is going on here. Feel free to contact me should you want any free guidance/information.

Answer 2

CODE OF CIVIL PROCEDURE
SECTION 170-170.9





170. A judge has a duty to decide any proceeding in which he or she
is not disqualified.



170.1. (a) A judge shall be disqualified if any one or more of the
following is true:
(1) (A) The judge has personal knowledge of disputed evidentiary
facts concerning the proceeding.
(B) A judge shall be deemed to have personal knowledge within the
meaning of this paragraph if the judge, or the spouse of the judge,
or a person within the third degree of relationship to either of
them, or the spouse of such a person is to the judge's knowledge
likely to be a material witness in the proceeding.
(2) (A) The judge served as a lawyer in the proceeding, or in any
other proceeding involving the same issues he or she served as a
lawyer for any party in the present proceeding or gave advice to any
party in the present proceeding upon any matter involved in the
action or proceeding.
(B) A judge shall be deemed to have served as a lawyer in the
proceeding if within the past two years:
(i) A party to the proceeding or an officer, director, or trustee
of a party was a client of the judge when the judge was in the
private practice of law or a client of a lawyer with whom the judge
was associated in the private practice of law.
(ii) A lawyer in the proceeding was associated in the private
practice of law with the judge.
(C) A judge who served as a lawyer for or officer of a public
agency that is a party to the proceeding shall be deemed to have
served as a lawyer in the proceeding if he or she personally advised
or in any way represented the public agency concerning the factual or
legal issues in the proceeding.
(3) (A) The judge has a financial interest in the subject matter
in a proceeding or in a party to the proceeding.
(B) A judge shall be deemed to have a financial interest within
the meaning of this paragraph if:
(i) A spouse or minor child living in the household has a
financial interest.
(ii) The judge or the spouse of the judge is a fiduciary who has a
financial interest.
(C) A judge has a duty to make reasonable efforts to inform
himself or herself about his or her personal and fiduciary interests
and those of his or her spouse and the personal financial interests
of children living in the household.
(4) The judge, or the spouse of the judge, or a person within the
third degree of relationship to either of them, or the spouse of such
a person is a party to the proceeding or an officer, director, or
trustee of a party.
(5) A lawyer or a spouse of a lawyer in the proceeding is the
spouse, former spouse, child, sibling, or parent of the judge or the
judge's spouse or if such a person is associated in the private
practice of law with a lawyer in the proceeding.
(6) (A) For any reason:
(i) The judge believes his or her recusal would further the
interests of justice.
(ii) The judge believes there is a substantial doubt as to his or
her capacity to be impartial.
(iii) A person aware of the facts might reasonably entertain a
doubt that the judge would be able to be impartial.
(B) Bias or prejudice toward a lawyer in the proceeding may be
grounds for disqualification.
(7) By reason of permanent or temporary physical impairment, the
judge is unable to properly perceive the evidence or is unable to
properly conduct the proceeding.
(8) (A) The judge has a current arrangement concerning prospective
employment or other compensated service as a dispute resolution
neutral or is participating in, or, within the last two years has
participated in, discussions regarding prospective employment or
service as a dispute resolution neutral, or has been engaged in such
employment or service, and any of the following applies:
(i) The arrangement is, or the prior employment or discussion was,
with a party to the proceeding.
(ii) The matter before the judge includes issues relating to the
enforcement of either an agreement to submit a dispute to an
alternative dispute resolution process or an award or other final
decision by a dispute resolution neutral.
(iii) The judge directs the parties to participate in an
alternative dispute resolution process in which the dispute
resolution neutral will be an individual or entity with whom the
judge has the arrangement, has previously been employed or served, or
is discussing or has discussed the employment or service.
(iv) The judge will select a dispute resolution neutral or entity
to conduct an alternative dispute resolution process in the matter
before the judge, and among those available for selection is an
individual or entity with whom the judge has the arrangement, with
whom the judge has previously been employed or served, or with whom
the judge is discussing or has discussed the employment or service.


There is more and the link is below.

Answer 3

she's the mother and honestly that wont happen. I have to agree with you.. my parents would yell to if i was throwing rocks.. and if i had kids (im 26) id be yelling to! the kids you have at their age should know better and she (your ex) should be more worried about getting them taken away for not being able to control them. I think she's more angry that your moving on with your life.. getting married and that this new woman will be moving in on her children.. you will have to watch for even more complaints and issues honestly. Work out with you fiance, at least for a time, that you do all the punishments.. that way the children cant go and say she did this and dad didnt do anything.. i hope you the best but she will always be a part of their life.. she is their mother!

Answer 4

Yes it is very possible to have everything appealed. It's gonna take $$$ but unfornately in these types of situations, the one with the most $$$ wins. Just keep going and don't back down.

Answer 5

HIRE A LAWYER!!! This is way too complicated for a layperson to do. You need to get an attorney right away before you lose further ground!