If a party believes that the judge assigned to their case is some how biased the party can raise the issue in a motion to recuse. However, the the motion to recuse will be reviewed by the judge who is thought to have exhibited bias. As a result, very few motions to recuse are granted and many more are never filed for fear of retaliation. The standard of review for a Motion to Recuse is an objective one. A party need not show that the judge was actually biased. They must only show from the totality of the circumstances that a reasonable person, knowing those circumstances, would believe that the judge may have been biased. The standard is whether there was an appearance of impropriety or bias, not actual bias. 

It is not fair to the litigant or the judge to rely on the questioned judge to make the decision of whether he can proceed without bias. It seems more efficient and more reliable to ask a third party to review the facts and objectively determine whether an appearance of impropriety exists. Review by a third party judge would better serve all of the parties and most importantly justice. A simple solution that puts justice first and makes sure we get it right.

One of the most fundamental ideals of our system of laws is that we use a jury of peers to determine the facts of a case. This principle is found in the US and our state Constitution. Generally, we know that regular people can be trusted to weigh the evidence and come to a reasonable resolution. We also believe that a jury is a way to keep power from being consolidated too much in the hands of just one person. Judges are people and they are as susceptible to a swollen head as anyone else. Judges also may have a tendency to be "too legal minded." By that I mean they may bee so accustomed to dealing with the technicalities of the law that they lose vision of the big picture. This point is illustrated when we look at the family court where there is no jury. When the issue of dependency arose there was a question of whether a jury should be impaneled. The court decided that no jury should be used because the constitution only guarantees a jury in those cases where a jury was use used at the time of the drafting of the constitution, and since an action for dependency did not exist at that time the court was free to go on without a jury. This reasoning has a logic to it but fundamentally ignores the purposes of a jury discussed above.

In any event, we have no right to a jury when the state makes a claim that our children are dependent or worse when the state files an action to terminate parental rights. This means that a judge will here our case and make a judgment of the facts operating under the handicaps listed above. Then when he issues an opinion the appeals court will overwhelmingly uphold that opinion based on the ore tenus rule because they themselves were not present to judge the credibility of witnesses. This is a source of major frustration for family court litigants who feel that the judge got it wrong on the the most important issues in their lives. 

A simple remedy for this frustration would be to mandate that all family court cases are recorded by video. Video equipment is not terribly expensive and is already installed in many courtrooms. Further, the cost of installing video equipment could be offset by eliminating the need for a court reporter to be present at these trials as a video could be used in place of a transcript. The video could then be transmitted to the appeals court and they would have the advantage of being able to review it and make an opinion of the facts by viewing what the trial judge viewed. In football we use instant replay because we want to get it right. We should do the same in court.

Great news!  Bipartisanship legislation introduced to protect children’s relationships with both parents.
A bill known as the “Children’s Equal Access Act” has been filed as Senate Bill 186 (“SB 186”).  In general terms, what does SB 186 do?

The Children’s Equal Access Act (SB 186) is a bill that incorporates research-based recommendations from the Alabama Law Institute Family Law Standing Committee, as well as research-based conclusions from the 40 studies and consensus of over 100 social scientists regarding child custody. The 40 studies and 112 experts conclude that “shared parenting should be the norm for parenting plans for children of all ages of fit parents. The scientific data has conclusively shown that shared parenting produces better outcomes for children (success in life) compared to our currently utilized “standard visitation”.

You can read the bill in its entirety here, or click on the file below to download your copy.
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Below are the listed sponsor/co-sponsors:

Senator STUTTS, Larry (SPONSOR)  (R) 334-242-7862                             [email protected]
Senator ALBRITTON, Greg                   (R) 334-242-7843                             [email protected]
Senator BEASLEY, Billy                         (D) 334-242-7868                             [email protected]
Senator BUSSMAN, Paul                        (R) 334-242-7855                            [email protected]
Senator COLEMAN-MADISON, Linda (D) 334-242-7864                           [email protected]
Senator SANFORD, Paul                       (R) 334-242-7867                             [email protected]
Senator MARSH, Del                              (R) 334-242-7877                             [email protected]
Senator SHELNUTT, Shay                    (R) 334-242-7794                             [email protected]
Senator SINGLETON, Bobby               (D) 334-242-7935                             [email protected]
Senator WHATLEY, Tom                      (R) 334-242-7865                            [email protected]

Please call or email the senators listed above, and thank the sponsor and co-sponsors for putting children in Alabama first.

Together we can make our voices heard to support children having two parents. Thank you so much for taking a moment to stand up and be heard today!

Appeals can be very challenging for pro se litigants that represent themselves and new attorneys trying their hand at the task for the first time. The rules of Appellate Procedure are your most important guide. That is where you will find your timelines for due dates as well as instructions on what must be included in your appeal. 

Appeals are very technical. There are rules about what to include, font size and style, page limits, color coding, numbers of copies, tabbing, etc... An attorney who specializes in or has experience in appeals is well worth a diligent search.

Aside from the technical issues listed above the content of a brief takes a special skill set. The brief must be well organized and compliant with the rules with an eye toward bringing technical errors of the trial court to light.

Two major rules that can cause great difficulty on appeal are the ore tenus rule and Rule 28. The ore tenus rule presumes that the findings of fact made by a trial court should generally not be disturbed on appeal because the trial judge is there at trial to review the demeanor of witnesses and judge their credibility. The idea is that the judge is there and scrutinizing the witnesses to determine who is telling the truth and who is not. However, this assumption is not always justified. Judges are human just like you and me. Sometimes they are distracted, their mind wanders or they are just otherwise inattentive or disinterested. Sometimes judges miss things or just don't appreciate what is being presented for whatever reason. The ore tenus rule acts as an obstacle to any reconsideration of the evidence. Sometimes the appellate court has so much respect for the trial court that it ignores the facts of a case and uses the ore tenus rule to justify turning a blind eye to the facts. I have seen a custody case where a mother moved her children 1000 from a comfortable home to pursue her own romantic interests. Not only did she mover her children from their home and extended family, she moved them into a tent, then into a barn. The state then had to inform her that a barn was not appropriate accommodations for children. These facts were undisputed at the trial court but were ignored by the appeals court for the sake of the ore tenus rule. Sadly if you were to read the decision in this case you would never know what the mother had done because none of the facts were included in the opinion. I have often thought that litigants and truth would be better served by video recording all family and custody cases for review on appeal. In these cases there are no juries or audiences to protect truth. We use instant replay in football games because we want to get it right. For the same reason instant replay is needed in family and divorce court.

Rule 28 dictates that all arguments on appeal must be supported by facts and law. This is a sound premise. However, sometimes this rule can be stretched to absurd lengths. Abraham Lincoln once quipped some judges "would hang a man for blowing his nose in the street , but ... would quash the indictment if it failed to specify what hand he blew it with." Some judges have been seen to use this rule to the extent that absent a definition being provided for each word of a brief the argument would be inadequate. While Bill Clinton may have stated that his answers must be conditioned on what your definition of the word "is" is; the rest of us are able use a little common sense. I have seen cases where the opinion indicates that this rule has not been satisfied but  a review of the brief will show dozens of cases cited on the subject matter. perhaps the attorney should have provided a footnote to define the word "is" for the court. The rules have a purpose - to make sure justice is served. However, when they are stretched justice is never served.

Special note should be taken of these rules to make sure  your appeal is not dismissed before the facts of your case are even considered.