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i guess i am posing my questions for possible arguments with a new judge. my attorney has a plan to disqualify this judge and is certain that it will work because he says that in FL we are given one 'free' disqualification of the judge. a second time would be questioned.... we would have evidence.

in fact there is a new law that states that if the judge sits on the recusal motion for 30 days the motion is automatically granted. my attorney isn't certain, but suspects that this judge may not know of this because of his dislike for new law.

i don't think it is a good idea for me to reveal the details here, but if you would like to know the details of the plan i would happily email it to you.

however, initially i believe my attorney's original goal was to do as you say and to be very precise in our discovery at this time to be prepared for appeal (that is since this judge does not recognize medical issues).

so what do you think about my questions on case law and my arguments for the new judge?

this is a very unorthadox judge. my attorney says we could not 'drag'/force him to abide by appellate/new law if we tried.

wade v. hirschman (fla 2005)  removes the required 'proof of detriment to the child in order to show a substantial and material change of circumstances'

johnson v. ziegler (fla 2006)  this case applied the wade 'no detriment' standard in a non-joint rotating custody case.

coldwell v. coldwell (mich. 1998)  and napier v. napier (ark. 2006)
these cases stand for the proposition that it is within the court's discretion to modify custody of a child when the child's primary residential parent refuses to acknowledge the child's health condition.

thomas v. harris (la. 1st dca 1994) acknowledges in footnote 2 that smoking could form the basis for finding detriment in a modification of custody action.


he thinks that the judge feels that the other parent should be warned first....... although, my attorney feels that the warning of three physicians and dcfs should have compelled the other parent to act appropriately in light of our daughter's asthmatic and allergic conditions. it shouldn't take a judge's warning to get the other parent to do what is best for the child(ren) and their physical health.

in our meeting today, he clarified in saying pretty much what you are saying... that no attorney in their right mind would attempt to disqualify him. and that he personally knows that this judge is vendictive and would retaliate (he is the chair of family law in this district)

but, he has a plan.

he wishes to 'outsource' the 'dirty work' to an out of district attorney... and has one in mind. and when we have a new judge, he will return to our case.

another thing that my attorney found particularly strange about the hearing... it was held for my amended supplemental counter-petition to modify and for summary judgment of the other parent's modification to remove visitation.

first, the summary judgment wasn't even discussed, except that the judge asked oc why his modification was filed based on items not even in our civil agreement (which acknowledges there is no legal foundation for the other parent's petition for modification)

it wasn't discussed what would happen with that motion.

first the judge said he would allow our amendment, then he went off on a 20 minute tangent about the evaluation and mediation.

then oc asked if he would wait to approve the amendment after mediation and the evaluation report is in... and the judge agreed.

my attorney pointed out that the original petition looked like 'someone on crack' wrote it (since it was drawn up by my previous attorney)  
it was terrible.

my attorney explained to the judge that it is imperative to our case that this amended petition be approved so that the evaluator may also have it as well, before her recomendation is released.

but, he will not approve it until after mediation and the report is complete.

1. is it just plain weird that my attorney wants to outsource the recusal?

2. if we do get a new judge, could we revisit the summary judgment and amended counter-petition issues with the new judge, hoping to get the new petition entered right away?

3. do you think i could find case law to support my argument that in our 50/50 rotating custody situation that 'primary residential parent' status holds no meaning.... to help level the playing field (lower my burden)?

4. also case law that supports that since both parents have filed a modification of the final judgment (technically you could say the other parent filed to modify visitation), the substantial change in circumstances burden is waived and we should be granted a new trial?

basically, we have a 50/50 rotating physical custody, shared-PR, with the other parent designated 'primary' for address/school purposes.

however i have an exorbant amount of proof that i have been the managing conservator since the final judgment was entered in may 2002, including but not limited to 95% of dr's appts., all dental appts., school volunteerism, and much more. i also have many witnesses that can account for the other parent's lack of involvement in our children's lives.

5. the general assumption is that a change in 'primary' would mean significant upheaval to the children....whereas, in our case, i feel it has no meaning, so should modification of that title shouldn't bare the same burden???? (i don't know if i even followed my own thought on that one)

well, jilly, unfortunately this hearing was in chambers.... only the judge, oc and my attorney. and i do not believe it was recorded, but i will inquire during the meeting with my attorney today.

i have a meeting today with my attorney to discuss the situation further. hopefully, i will get a better explanation.

i am going to attempt to persuade him to do what needs to be done. looking for a third attorney is not good for my case.

1. am i correct in saying that if this judge refuses to recuse himself, that this situation has also handicapped my hand at mediation?  doesn't this give oc an edge?

2. and make the judge more upset with us for trying to remove him?

i have called 15+ attorneys today.... same story.

basically, no one wants to take my case. this is so very frustrating.

any ideas?

I just spoke with the judge's judicial assistant and she cannot even remember if a court reporter was present at the hearing, but that i need to go thru my attorney to obtain the transcript.

1. am i SOL if a court reporter wasn't present at the hearing? meaning do i need the transcript to have him removed from the case?

actually my attorney is a former magistrate and very friendly with all parties involved. meaning he has very close relationship with the judge and our evaluator.  in fact, because oc attempted to take advantage of the death of my original attorney, the eval. stuck her neck out and referred me to this attorney... which at the time i thought was strange as well.

this whole case has been one weird thing after another.

when we hired him we thought this would be beneficial for our case, as he would get the straight juice from the eval. or judge.

i felt like what he was saying was that if he tried to remove the judge from our case, he would be putting himself into early retirement.

1. could that be true?

2. where do i go to get the transcript?

3. i just found out on the fl bar site that my attorney is a member of the Judicial Admin. & Evaluation Committee. could that have something to do with it?...... though i am not exactly sure what that is.

i have called 15+ attorneys today.... same story.

basically, no one wants to take my case. this is so very frustrating.

any ideas?

I just spoke with the judge's judicial assistant and she cannot even remember if a court reporter was present at the hearing, but that i need to go thru my attorney to obtain the transcript.

1. am i SOL if a court reporter wasn't present at the hearing? meaning do i need the transcript to have him removed from the case?

actually my attorney is a former magistrate and very friendly with all parties involved. meaning he has very close relationship with the judge and our evaluator.  in fact, because oc attempted to take advantage of the death of my original attorney, the eval. stuck her neck out and referred me to this attorney... which at the time i thought was strange as well.

this whole case has been one weird thing after another.

when we hired him we thought this would be beneficial for our case, as he would get the straight juice from the eval. or judge.

i felt like what he was saying was that if he tried to remove the judge from our case, he would be putting himself into early retirement.

1. could that be true?

2. where do i go to get the transcript?

3. i just found out on the fl bar site that my attorney is a member of the Judicial Admin. & Evaluation Committee. could that have something to do with it?...... though i am not exactly sure what that is.