When navigating a family law case—whether it involves divorce, custody, or support—it's essential to understand your rights in front of the court. One of the most powerful procedural tools available in California is found in Code of Civil Procedure § 170.6, which allows a party or their attorney to disqualify a judge, court commissioner, or referee if they believe that individual is prejudiced against them.

What Is CCP § 170.6?

Under § 170.6(a)(1), no judge, court commissioner, or referee shall try or hear any matter involving a contested issue of law or fact if it is established that the judicial officer is prejudiced against a party, the attorney, or their interests. This challenge doesn't require proof of actual bias—just a sworn statement that the party believes they cannot receive a fair and impartial hearing.

This is often called a “peremptory challenge,” and it's a unique feature of California law designed to preserve fairness and impartiality in the courtroom.

How to Make the Challenge

A party or attorney may establish prejudice under § 170.6(a)(2) by making a motion—either orally or in writing—accompanied by a declaration under penalty of perjury or an oral statement under oath. This motion must declare that the judicial officer is prejudiced so that a fair hearing cannot be held.

Timing is critical:

• In civil cases assigned for all purposes, the motion must be made within 15 days of receiving notice of the assignment or within 15 days of first appearance, whichever is later.

• In courts with only one judge, the motion must be made within 30 days of the first appearance.

• If the judge is known at least 10 days before a hearing, the challenge must be filed at least 5 days before.

• For other hearings, the challenge must be made before the hearing begins.

Once filed properly, and assuming all procedural steps are met, the judicial officer is automatically disqualified under § 170.6(a)(4), and the matter must be reassigned.

Limits on Use

Only one peremptory challenge is allowed per side, per case. In multi-party cases, only one challenge may be filed for all plaintiffs or all defendants collectively.

Also, a judge who has previously presided over non-substantive matters—like case management or procedural motions—can still be challenged later, as long as they haven't made determinations of contested factual issues related to the merits.

Why It Matters in Family Law

Family court cases are deeply personal and often emotionally charged. Whether it's a judge's reputation for handling custody matters or previous rulings that seem concerning, CCP § 170.6 allows litigants to seek a different judge when they genuinely fear they won't get a fair hearing.

Final Thoughts

The ability to file a peremptory challenge is a powerful right, but it must be exercised carefully, timely, and in accordance with the law. If you're unsure whether to file under § 170.6 in your family law case, speak with your attorney immediately—strategic timing is everything.