If you’re involved in an Arizona family law case—such as a divorce—that has been appealed and sent back (remanded) to the trial court, you might wonder if you can request a new judge. The same question arises if you are in dependency court and facing a termination of your parental rights.
Litigants understandably want a fresh set of eyes after they have successfully challenged the decision of the judge, but Arizona law strictly limits this option in certain situations. Leading cases on this issue are Anderson v. Contes, 212 Ariz. 122, 128 P.3d 239 (App. 2006) and Coffee v. Superior Court (1 CA-SA 18-0251, June 20, 2019, Division One) which guide courts today.
The Facts of Anderson v. Contes
This case arose from a divorce proceeding where the trial court awarded spousal maintenance. On appeal, the Arizona Court of Appeals reversed the award not on the merits (i.e., not because the decision was wrong substantively), but solely because the trial judge’s findings of fact were insufficient to allow meaningful appellate review. This is often called a “findings remand” or limited procedural remand.
After the case returned to the original trial judge, one party filed a Notice of Change of Judge for Cause. Through the last couple of decades, a civil rule applied to family courts, but the current change of judge rule in family court is Arizona Rule of Family Law Procedure 6.1 and the statute is A.R.S. §12-409. In Contes, the party alleged bias based on the prior rulings and the inadequate findings.
It’s important to note here that to change a judge on grounds of bias is incredibly difficult in any Arizona court. You quite literally have to have proof that the judge has a financial or personal interest in your outcome. We have heard some outrageous claims about judges and our question is always whether proof exists. With AI, video or photographic evidence could swing for or against the proponent of the change. The trial judge denied the request, and the Court of Appeals upheld the denial.
Key Holdings from the Anderson v. Contes case:
The Court of Appeals in Anderson v. Contes established important principles:
-If the court of appeals remands a case only for insufficient findings or to make minor corrections to procedure—but does not change the substantive outcome, and therefore does not reverse on the merits, vacating the judgment substantively, or indicate judicial bias or error warranting reassignment—the case stays with the original judge.
– You do have one automatic or peremptory right to a change of judge at specific windows in your case. There is no automatic or peremptory right (change as a matter of right) to a new judge on such a limited remand. (The Current Arizona Rule of Family Law Procedure 6 allows a change as a matter of right in some broader remands, like those for a new trial, but not for limited findings remands.)
– A for-cause challenge (under Rule 6.1 and A.R.S. § 12-409) requires real, objective evidence of bias or prejudice. You cannot just think the judge was biased – you need to prove they are biased. Just because you disagree with the judge’s prior rulings, or you are frustrated with inadequate findings, or you speculate that the judge could have more interest in your case than is fair, is just not enough.
The appeals court emphasized in Contes that allowing judge changes in these scenarios would encourage “judge-shopping.” The court of appeals said People cannot use appeals and limited remands to forum-shop for a more favorable judge, because that would undermine judicial efficiency.
Why Anderson v. Contes is still Relevant
Anderson v. Contes is frequently cited by Arizona courts to reject attempts to disqualify the original judge after a limited appellate remand. For example:
– If the appeal succeeds only because the judge failed to make detailed enough findings (common in spousal maintenance, property division, or child support cases), you can almost never force a new judge.
– To succeed on a for-cause request, you must provide concrete evidence of bias (e.g., outside comments or conflicts, relationships that would make it impossible for the judge to be impartial). Being dissatisfied with the outcome isn’t enough to change the judge for cause.
In contrast, if the remand is for a full new trial or a substantive reversal suggesting the original proceedings were flawed beyond repair, and there could be a new and different parenting time order, or new spousal maintenance order, then the parties may have renewed rights to a peremptory change under current rules.
The key holdings from Coffee v. Hon. Ryan-Touhill/Appling, No. 1 CA-SA 18-0251 (Ariz. App. Div. One, June 20, 2019) (mem. decision), are as follows:
– The right of a party to file a change of judge under Arizona Rule of Civil Procedure 42.1(e) is renewed when the party succeeds in obtaining appellate relief (including via special action) that requires the superior court to conduct a new evidentiary hearing involving the presentation of new evidence and reconsideration of prior rulings.
– The term “new trial” in Rule 42.1(e) is interpreted more broadly to allow for not only formal full trials but also contested hearings where evidence will be presented. If the new hearings could afford either party the chance to show the judge new or different evidence, and the court could be asked to weigh the new information against the previous decision, then a change of judge could be granted. This is true particularly where the prior ruling was vacated due to procedural deficiencies (e.g., denial of due process). This is an expansion of the decision in Anderson v. Contes.
– No one has to show judicial bias or prejudice. The peremptory right renews automatically upon the appellate mandate or order directing such a new hearing. If you already used your one exercise of the peremptory challenge of a judge, then that’s a one and done. You cannot twice challenge a judge using your one free opportunity.
– Special action jurisdiction is appropriate to review denials of peremptory challenge change of judge requests, as a special action is an interlocutory appeal that provides the only adequate remedy. Waiting for the entire case to resolve and doing a direct appeal is unavailable for interlocutory judge assignment orders.
The Coffee decision arose in a family law context (relocation and parenting time dispute) following a prior special action that vacated a temporary order for lack of due process and directed a new hearing. The court granted relief, ordering a change of judge. The full memorandum decision is available on sites like FindLaw or Casetext for complete context.
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Practical Advice for Arizona Family Law Cases
Get a lawyer. We know every lawyer says this, for good reason:
- Your lawyer may think of things you missed.
- Your lawyer may know information about the judge or the issues that you do not.
- Your lawyer may have a different strategy that works better.
What you can do if you win on remand:
Review the appellate decision carefully. Look for language about the scope of remand. Terms like “remand for further findings” or “additional proceedings consistent with this opinion” could operate as code words for “limited remand where Anderson v. Contes applies.”
– Remember that for-cause challenges are tough: They require an affidavit and can require a hearing before the presiding judge. Subjective feelings aren’t sufficient—evidence must meet an objective standard.
– Consult an experienced Arizona family law attorney early if you’re considering an appeal or facing a remand. The rules on changing a judge, Arizona Rules of Family Law Procedure 6 and 6.1, have evolved slightly since 2006. Still, the core principles from Anderson v. Contes remain controlling on when you can change your judge.
– Remember that the judicial system is not an executive system. It is a responsive system. The way the three branches of our government work are equal, but their timing is different. The legislature creates laws. The executive branch (e.g., police, DCS) enforce the laws. The judicial system responds to challenges around the interpretation and enforcement of those laws. Bear in mind that while you wait for a fair judicial outcome, the wrong will continue.
Understanding this case can save time, money, and frustration in post-appeal proceedings. If your search for “changing my judge after remand Arizona” led you here, know that the law prioritizes continuity with the original judge unless the remand fundamentally restarts the case.
Moshier Law has wrestled some difficult situations and we can help you create a path to your best outcome. We urge you to continue to think about the big picture of your life. Drop a pin on the legal map of where you hope your family can exist. Moshier Law will create a detailed strategy for the way to get you there. Our mission is to help your family where it is now, and for the next generation that follows.
