January 29, 2015
PERSONAL AND CONFIDENTIAL
This responds to your inquiry (14-168) asking if you may preside in two family court matters involving the same parties. They are parents who previously appeared before you in a child custody proceeding. In addition, one parent is the complainant in a criminal case against the other parent. The prosecutor has subpoenaed you to testify in the criminal case to confirm that you presided in the custody proceeding and, if possible, to identify the parent/defendant’s voice on an audio recording of the custody proceeding.
The Committee previously has advised that a judge is not ethically required to disqualify him/herself from presiding in a matter after testifying pursuant to subpoena as a fact witness in an unrelated matter, even though the testimony is adverse to an individual who is a litigant in both cases. Of course, this assumes and requires that the judge believes he/she can be impartial.
Enclosed for your convenience are Joint Opinion 09-172/10-31 and Opinion 91-25.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)