Can comments about an expert witness create judicial bias requiring recusal? Fullmer v. Fullmer Explained

In custody disputes, parties often clash over the admissibility and weight of expert testimony. But when does a judge’s assessment of an expert’s credibility cross the line into disqualifying bias? The Utah Court of Appeals addressed this question in Fullmer v. Fullmer, providing important guidance on judicial recusal standards and custody modification decisions.

Background and Facts

During divorce proceedings, the parties stipulated to appointment of Dr. Natalie Malovich as custody evaluator. Initially, Father received temporary primary custody, but Dr. Malovich later recommended Mother become the primary custodial parent. Father moved to exclude Dr. Malovich’s report and testimony, arguing it was unreliable and improperly addressed his prescription drug use. When denying the motion, the trial judge stated Father appeared to be “taking swipes at a prominent and very credible expert” and criticized Father’s arguments by saying “I guess it’s up to you to determine whether or not you think I’m stupid.”

Key Legal Issues

Father raised two primary issues on appeal: (1) whether the trial judge committed plain error by failing to recuse himself sua sponte after commenting on the custody evaluator’s credibility, and (2) whether the court abused its discretion in altering the temporary custody arrangement to award Mother primary custody.

Court’s Analysis and Holding

The Court of Appeals affirmed on both issues. Regarding judicial bias, the court applied the Utah Code of Judicial Conduct standard requiring disqualification when “the judge’s impartiality might reasonably be questioned.” Viewing the comments in context, the court found the judge’s statements addressed the legal basis for admitting Dr. Malovich’s testimony based on her qualifications, not favoritism toward either party. The judge had clarified he didn’t always agree with Dr. Malovich and approached the case without preconceived notions.

On the custody issue, the court emphasized that district courts have broad discretion in custody determinations. The trial court had properly considered statutory factors including both parents’ employment stability, emotional involvement with the children, and the children’s needs. Importantly, the court didn’t simply adopt Dr. Malovich’s recommendations wholesale, modifying her proposed parenting schedule based on Father’s concerns about stability.

Practice Implications

This decision reinforces that judges may comment on expert qualifications without creating disqualifying bias, especially when explaining evidentiary rulings. However, practitioners should preserve bias claims by filing timely Rule 63 motions to disqualify rather than relying on plain error review. In custody matters, temporary arrangements don’t carry determinative weight—courts retain discretion to modify custody based on comprehensive best-interest analyses, even when altering functioning arrangements.