In civil cases, which include divorce and paternity actions, each party has the right to request a Special Judge (also called a change of Judge) one time.1 After a final decree is issued, such as a divorce decree, if a party seeks to modify same (modify custody, parenting time, or child support), either party is again entitled to one change of Judge, and once granted, may not request another change even if he or she files new petitions to modify custody, parenting time, or child support in the future.
When a party requests a change of Judge, the parties collectively have 7 days to agree to a new Judge, or if an agreement cannot be reached, the local rules in the county in which the case was originally filed control as to how a new Judge is determined.2 If a Judge is selected, the Judge can chose whether he or she wishes to accept jurisdiction. If a selected Judge does not accept jurisdiction, the local rules of the county in which the case was originally filed will control as to how another Special Judge is selected.3
In addition to the Special Judge request procedure, there is another procedure that litigants in civil cases often utilize, namely requesting that the elected Judge hear the matter. Oftentimes, Judges utilize Magistrates and Commissioners to assist with hearing matters in the Judge’s court when a docket is extremely full. A Magistrate is a “civil officer with power to administer and enforce law.”4 A Commissioner is similar to a Magistrate in function, and will often hear matters in a court, including preliminary hearings, in place of the Judge. Thus, a litigant, if happy with the Judge his or her case was assigned to, may chose not to change Judge, but rather, have the Judge hear the case instead of a Magistrate or Commissioner. A litigant must file a motion asking that the elected Judge hear the matter instead of the Magistrate, and same must be filed within 10 days after the pleadings are closed (i.e. a response to the initiating party’s motion was filed), or within 30 days if no response to the initiating party’s motion is required. Thus, same must be requested shortly after the case was filed.5
A recently decided Indiana Court of Appeals case addressed the issue of if a Special Judge assumes jurisdiction, may he or she assign that particular case to a Magistrate or Commissioner’s docket in the his or her Courtroom?
In the Asher v. Coomler case, the Indiana Court of Appeals held that if a Special Judge assumes jurisdiction following a party’s request for same, that Judge must hear the case, and may not assign that case to a Magistrate or commissioner, even when the party has not filed a request that the elected Judge hear the matter(6.
In Asher v. Coomler, Father requested and was granted a change of Judge. When the parties appeared at the first hearing, the Magistrate took the bench, and proceeded over the case instead of the elected Judge / Special Judge that had assumed jurisdiction. Father’s attorney at the beginning of the proceedings, and upon seeing the Magistrate instead of the Judge, immediately sought a continuance and stated that she believed the matter needed to be heard by the elected Judge, who was a Special Judge in that matter. The Magistrate denied Father’s requested and proceeded to hear evidence and issue an Order, believing that because Father had not filed a separate motion requesting the elected Judge to hear the matter, the Magistrate was an appropriate official to hear the matter.
The Court of Appeals held that when a Special Judge is unavailable to hear a case, only a Judge pro tempore, Temporary Judge, or Senior Judge may sit in the Special Judge’s place, pursuant to the Indiana Trial Rules.7 Thus, a Magistrate is not an appropriate official to take the place of a Special Judge, and if no other appropriate official is available, the matter must be reset on a different date when the Special Judge is available. The Court of Appeals went on to state that because Father objected to the Magistrate hearing the matter at the first hearing, that objection was sufficient to cover all subsequent hearings, and the issue was properly preserved for appeal. Thus, the Court of Appeals found that the Order issued by the Magistrate was without legal effect, and remanded the case back to the trial court with instructions that the parties may select a Special Judge, and that Father’s request for same entitled him to have the Special Judge hear his case.
We hope that this blog post has been helpful in understanding the procedures to select a Special Judge, and the role a Special Judge plays. Every case is different, and it is recommended that you consult an attorney to determine the best course of action to achieve your goals in your specific case. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.
