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How to Request a New Judge in Illinois Family and Civil Litigation Cases

Updated on
November 1, 2019
Article written by
Attorney Kevin O'Flaherty

In this article, we explain how to request a new judge in Illinois family and civil litigation cases. We explain the four different contexts in which parties may request a new judge:

  1. Substitution of judge based on the judge’s conflict of interest;
  2. Substitution of judge as a matter of right;
  3. Substitution of judge for cause; and
  4. Substitution of judge in contempt proceedings.  

Substitution of Judge Based on the Judge’s Conflict of Interest in Illinois

Either party may request a substitution of judge at any time, or the court may award it without either party’s motion, based on the following grounds related to the judge’s interest in the case:

  • The judge is a party to or has an interest in the outcome of the case;
  • The judge’s testimony is relevant and important to either party’s case;
  • The judge is related to either party; or
  • The judge has served as the attorney for either party with respect to the matter before the court.

Substitution of Judge As a Matter of Right in Illinois

Each party in a civil litigation or family law case has a right to one substitution of judge if the substitution is requested before trial or hearing and before the judge has ruled on any “substantial issue” in the case.  

A judge’s ruling is on a “substantial issue” if it is directly related to the merits of the case, as opposed to merely procedural.  

Even if the judge has ruled on a “substantial issue” the parties may change the judge as a matter of right if:

  • All parties consent;
  • The party seeking substitution has not yet filed an appearance and has not been found in default; or
  • If the party seeking substitution can show actual prejudice.

Substitution of judge as of right can be requested by motion and does not usually require a hearing.

Substitution of Judge for Cause in Illinois

A party may request a substitution of judge for cause by filing a verified petition, supported by an affidavit, setting forth a good reason that the judge should be substituted.  Once the petition has been filed, a hearing will be held before a different judge to determine whether the substitution will be permitted.  Unlike substitution as of right, substitution of a judge for cause is not limited to one substitution per party.

Substitution of Judge in Contempt Proceedings in Illinois

If a contempt proceeding arises from the defendant’s attack on the character or conduct of a judge occurring outside of open court, the defendant has a right to have a different judge rule on whether he or she will be held in contempt.  The defendant can request a substitute judge by filing a verified petition prior to the contempt trial.  

Procedure for Substitution of Judge in Illinois

The motion or verified petition for substitution of judge should be filed with the clerk of court in which the case is pending.  Reasonable notice of the motion or petition, which will vary from county to county, must be given to the other parties in the case. If the court allows the substitution of judge, the case will be transferred to either a different judge in the same county or to a different convenient county to which neither party objects.


How to Request a New Judge in Illinois Family and Civil Litigation Cases
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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