HUITT v. HSIA (2003)

ON MOTION FOR REHEARING

We deny respondent's motion for rehearing, but substitute the following for our May 20, 2003, slip opinion, correcting a factual misstatement:

The former husband filed this petition for writ of certiorari to review an order denying the disqualification of a domestic relations commissioner hearing the former wife's motion to modify custody and to relocate the parties' child to Virginia where she lives.   He sought the commissioner's disqualification from future proceedings on the ground that he feared the commissioner was biased against him. The commissioner stated in her report that a factor in her recommendation in favor of the mother was the mother's religious beliefs and the father's lack thereof.

The Florida Code of Judicial Conduct Canon 3B(5), provides:

A judge shall perform judicial duties without bias or prejudice.   A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including ․ bias or prejudice based upon ․ religion․ This section does not preclude the consideration of ․ religion ․ when [it is an] [ ] issue[ ] in the proceeding.

Because the parties' religious differences were not an issue in the proceeding, the commissioner's questioning and statements would reasonably cause the father to fear the commissioner was personally biased against him on the basis of religion.   We grant the petition, and on remand, the case shall be assigned to a different commissioner.

PER CURIAM.

WARNER, POLEN and TAYLOR, JJ., concur.