Should You Use a Private Judge for Your San Francisco Divorce?

By Laura Chickering, Managing Attorney, Fenchel Family Law PC

If you’re going through a divorce or custody dispute in San Francisco, you may have heard your attorney mention a “private judge” and wondered whether it’s worth the money, or whether it’s some secretive process reserved for the ultra-wealthy. Neither assumption is quite right, and understanding the difference could save you significant time, stress, and legal fees.

Here’s what you actually need to know before deciding whether a private judge makes sense for your case.

The single most important thing to understand up front: a private judge proceeding is not confidential. The word “private” refers to how the judge is paid, privately, by you and the other party, not to whether your case is shielded from public view.

Your judgment is still filed with the court. Either side can still appeal. And the appointment order actually has to include contact information for the judge’s office so members of the public can request to attend your hearings. If what you’re really looking for is confidentiality in the legal sense, a private judge isn’t the tool for that. Mediation might be.

That said, in practice it often feels more private than public court. Almost no one actually requests to attend a private hearing, whereas a public courtroom can feel more like a fishbowl, other families, other cases, and courtroom staff all moving through the same crowded docket around you. That day-to-day experience is real, but it’s different from actual legal confidentiality, and it’s worth keeping the two straight when you’re deciding what you need.

It’s also not the same thing as arbitration or mediation. A private judge follows the same rules of evidence as a courtroom judge and issues a decision that can be appealed. Mediation and arbitration don’t work that way. People often use these terms interchangeably, but they lead to very different outcomes.

Your finances are complicated. If your case involves stock options, a business you or your spouse owns, executive compensation, or other complex assets, a judge who already understands complex financial evidence, valuation reports, tax returns, cap tables, and expert declarations, not just live testimony, can move through it far more efficiently than a judge seeing it for the first time on a crowded public calendar. That familiarity can actually lower your overall costs by reducing the hours your forensic accountant needs to spend explaining the basics.

Your custody situation is high-conflict or your child has special needs. If your child’s care involves an IEP team, therapists, or psychiatrists, a private judge can hold case management conferences more frequently and stay closely involved, sometimes with your child’s actual care team participating directly, rather than waiting weeks for the next available court date.

You want the same judge from start to finish. In San Francisco Superior Court, as in any public court, your case can be reassigned mid-stream, which means re-explaining your situation to someone new. A private judge stays with your case from beginning to end, and your hearings are scheduled around your case alone rather than squeezed into a crowded law-and-motion calendar where wait times can run three or more hours.

Not every private judge is the right fit for every case. Just like attorneys, private judges tend to specialize, some built their careers around complex financial matters like business valuations and executive compensation, others around high-conflict custody and child welfare issues. Before agreeing to a candidate, it’s worth asking your attorney what that judge’s background actually is and whether it matches what your case needs most. A judge with deep financial expertise isn’t necessarily the strongest choice for a case that’s really about a parenting plan, and vice versa.

How receptive a court is to a private judge appointment, and how smoothly that appointment moves through the system, isn’t uniform across California. Different counties have different norms, and even within the Bay Area, practices can differ from one family court to the next. This guide reflects our experience representing clients in the San Francisco Bay Area courts we practice in. If any part of your case touches a county outside that area, ask your attorney directly how that particular court tends to handle private judge appointments before you count on the process working the way it’s described here.

This is one of the most useful things to discuss with your attorney: a private judge doesn’t have to take over your entire case. If there’s a single issue standing between you and settling, say, the date of separation, or whether a premarital agreement’s support terms hold up, you can appoint a private judge to resolve just that issue, then return to public court or settle the rest on your own.

Ask yourself, or your attorney, where you and the other side actually stand:

The short version: mediation only works if you can both agree. A private judge guarantees you’ll get a decision either way, which is why it tends to be the better fit when negotiations have stalled or trust has broken down.

Once you and your attorney decide a private judge makes sense, the process is straightforward, though it does need to be done in the right order. Your attorney identifies a qualified candidate, that person runs a conflicts check against everyone involved in your case, and the scope of what they’ll decide gets defined in writing, ideally narrowly, as discussed above. The judge then signs a formal oath and ethics certification, and the appointment has to be filed and signed off by the actual court before anything else can happen. Skip that last step and the private judge has no legal authority to act on your case yet, so it’s worth confirming with your attorney that it’s been completed before you proceed.

Something people frequently overlook: a private judge’s authority over your case doesn’t automatically end when your judgment is entered. If you have minor children or ongoing spousal support, someone needs to decide whether that judge stays available for future modifications or whether your case reverts to public court. This requires a formal notice of termination, and practices vary by county, so it’s worth asking your attorney directly whether this step has been handled once your case concludes. It’s an easy thing to lose track of, and it’s worth confirming rather than assuming it happened automatically.

Private judge rates typically run several hundred dollars an hour, with full-day rates commonly reaching several thousand dollars and half-day rates available through some providers. That can sound steep next to “free” public court, but public court isn’t really free. Repeated hearings, continuances, and unpredictable wait times, especially when your case gets reassigned to a new judge who has to get up to speed, generate their own substantial attorney fees over time, and those can rival or exceed what you’d spend on a private judge.

If cost is a concern, ask your attorney about narrowing the private judge’s role to a single issue, keeping custody in public court while reserving the private judge for financial complexity, or simply weighing whether a judge who already understands your financial situation might reduce what you’re paying your forensic accountant.

Private judges answer to the same ethical rules as any courtroom judge, and the most important one is disclosure: if the judge takes on any new professional relationship with either side’s attorney while your case is still open, they’re required to disclose it immediately, not after the fact.

This isn’t a hypothetical concern. In Angelina Jolie and Brad Pitt’s divorce, the private judge failed to disclose that he had taken on new cases with one side’s attorney while their case was still pending. The court disqualified him over it. If a judge in one of the most closely watched divorces in recent memory couldn’t get away with that, it’s a fair reminder that disclosure isn’t optional for anyone, however high or low profile the case.

Before you agree to a private judge, it’s worth asking your attorney directly: has this judge disclosed any other current or recent work with opposing counsel? How will you find out if that changes mid-case? A good private judge will volunteer this information without being asked, but you’re entitled to ask anyway.

It’s a fair criticism, and one worth taking seriously rather than brushing aside: private judging means people who can afford it get faster, more attentive adjudication, while everyone else works through an overburdened public system. That disparity is real.

At the same time, it’s worth knowing that both sides have to agree to a private judge, so you’re never forced into paying for something you don’t want. And cases like yours moving out of the public system can free up court time for people who have no other option. The broader inequity in access to legal representation exists with or without private judging in the picture, and it’s a real problem our justice system continues to work on.

A private judge isn’t a shortcut and it isn’t a secret process, it’s a fully public, fully appealable option that happens to be privately funded and scheduled around your case instead of the court’s. For the right situation, that combination of expertise, consistency, and calendar control can make a real difference in how quickly and how well your case resolves. If you’re considering it, ask your attorney whether your case is a good fit, get clear on cost upfront, and keep the scope as narrow as it reasonably can be.

About the Author

Laura Chickering is the Managing Attorney at Fenchel Family Law PC, where she leads the firm’s most complex high-asset dissolution, high-conflict custody, and post-judgment matters. Her background in corporate and intellectual property law gives her uncommon fluency in business valuation, stock-based compensation, and financial tracing in complex marital estates.

Disclaimer: This post is for general informational purposes only and does not constitute legal advice. Every family law matter presents unique facts, and readers should consult a licensed California family law attorney before making decisions about private judging or any other aspect of their case.