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  1. #16
    weenor is offline Senior Member
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    Quote Originally Posted by octrom66
    The thread got a bit outta hand and, for some reason could not find this one... so I posted again. Sorry.

    Anyway... Yes, X has been admitted recently to a hospital for what she says was a "kidney infection" but I don't know how to get the hospital records and don't actually know which hospital it was. How can I get them?

    When you figure out what hospital, a subpoena must be issued to the custodian of records at the hospital in accordance with your state's rules of civil procedure (subpoena the custodian to the Sept. 13 hearing and tell them to come with the records). The hospital will likely object (or she will) because drug treatment and/or psych. records are protected. You or your lawyer will have to appear before the judge and explain why you need. Judge will order them to be produced under seal so he can look at them.

    The hearing date set by the stand-in commissioner (Sept. 13) for the MODIFICATION OF VISITATION AND CHILD SUPPORT addresses the fact that I am accusing X of being in contempt and that I wanted the court to do something about it. I hope that the original commissioner sees the mess up and does something about it... but I was hoping to do whatever I could to cover all bases. Now, it seems as though they are not.

    Then, on Sept 29, I have the hearing to see what the evaluator recommends.

    The evaluator will need those records as well.

    I don't want to piss the court off for filing something they might consider frivolous. Just want to accentuate the fact that she DIDN'T take the hair test as ordered the first time and that should show as either contempt or as a dirty test. AND... she lied to the court about it.
    I think this should establish with the court that she is unfit... at least til she has been clean for 6 months or more.

    Any Suggestions?
    Has she attended any AA or NA meetings? If she has a sponsor you can subpoena them or any other "friends" who know of her drug use.
  2. #17
    octrom66 is offline Junior Member
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    Quote Originally Posted by weenor
    Has she attended any AA or NA meetings? If she has a sponsor you can subpoena them or any other "friends" who know of her drug use.
    No NA or AA ... don't really know anybody that would do that.

    The mediator recommended a relapse/psych class with random testing and the commissioner ordered it, but right now, the best thing would that hair test and/or the hospital record. Can I subpoena that?
  3. #18
    octrom66 is offline Junior Member
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    Quote Originally Posted by weenor
    When you figure out what hospital, a subpoena must be issued to the custodian of records at the hospital in accordance with your state's rules of civil procedure (subpoena the custodian to the Sept. 13 hearing and tell them to come with the records). The hospital will likely object (or she will) because drug treatment and/or psych. records are protected. You or your lawyer will have to appear before the judge and explain why you need. Judge will order them to be produced under seal so he can look at them.

    I've never done a subpoena before and the procedures are hell to find the exact point... do I file a motion to subpoena with the court and get their approval first; or do I just file the subpoena with the clerk of the court and they'll let me know what next; or, do I just fill out the subpoena form and serve the custodian of records?

    Sorry for the ignorance...
  4. #19
    weenor is offline Senior Member
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    Quote Originally Posted by octrom66
    No NA or AA ... don't really know anybody that would do that.

    The mediator recommended a relapse/psych class with random testing and the commissioner ordered it, but right now, the best thing would that hair test you'll have to file a motion with the judge and give him the EXACT reason you need hair follicle instead of another type.

    and/or the hospital record. Can I subpoena that?
    yes..see below.
  5. #20
    weenor is offline Senior Member
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    Quote Originally Posted by octrom66
    I've never done a subpoena before and the procedures are hell to find the exact point... do I file a motion to subpoena with the court and get their approval first; or do I just file the subpoena with the clerk of the court and they'll let me know what next; or, do I just fill out the subpoena form and serve the custodian of records?

    Sorry for the ignorance...
    You will file a subpoena addressed to the custodian of records (must have a person's name- so call the hospital or doctor's office) with the address where the records are kept, with the clerk of court where you case is pending. Usually for the payment of fee, they will give the subpoena to the sheriff to serve- service could take anywhere from one week to 30 days. If you are in a hurry contact a special process server to serve the custodian.(in the phone book). Make sure that the subpoena requests in and all records between two specific dates.

    After it is served, keep checking with court because there will likely be an objection filed by the care giver or the ex. If the judge does not set a separate hearing be prepared to argue why the records are necessary before the start of the hearing you already have.

    The information above is general, and NOT California specific. Check the California Rules of Civil Procedure to make verify the above is handled properly in California.
  6. #21
    octrom66 is offline Junior Member
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    Quote Originally Posted by weenor
    you'll have to file a motion with the judge and give him the EXACT reason you need hair follicle instead of another type.
    I don't want to piss the court off by filing too many motions, but, my case depends on proving that X was using while my kid was living with her and she was getting exposed to some awful living conditions and only a hair test or the hospital records will establish this.

    OK... Would it hurt to file an OSC and affidavit for contempt since, in fact, X did NOT comply with the initial order to take a HAIR FOLLICLE TEST within the alotted time and perjuring herself by telling the court that she had taken the test?

    How about a motion to object to the most recent order giving them the EXACT reason? Is this harsh?
    Last edited by octrom66; 08-18-2006 at 05:18 PM.
  7. #22
    octrom66 is offline Junior Member
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    Custodian wants to send the records instead...

    Quote Originally Posted by weenor
    When you figure out what hospital, a subpoena must be issued to the custodian of records at the hospital in accordance with your state's rules of civil procedure (subpoena the custodian to the Sept. 13 hearing and tell them to come with the records). The hospital will likely object (or she will) because drug treatment and/or psych. records are protected. You or your lawyer will have to appear before the judge and explain why you need. Judge will order them to be produced under seal so he can look at them.
    OK... a subpoena was issued and served to the custodian of records, telling them to come to the court with the records... however, the custodian is trying to get out of having to bring them personally to the court. They would like me to write a letter allowing them to only send the records in a sealed envelope.

    The cost, to me, for them taking the records to the court is only $35 plus mileage... not that much, but I don't believe it's the best choice to have them sent. I fear they might get "lost" in the mail or in the court system.

    Should I allow them to just send the records or should I just let it be?
    Last edited by octrom66; 09-08-2006 at 11:26 PM.
  8. #23
    casa is offline Senior Member
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    Quote Originally Posted by octrom66
    OK... a subpoena was issued and served to the custodian of records, telling them to come to the court with the records... however, the custodian is trying to get out of having to bring them personally to the court. They would like me to write a letter allowing them to only send the records in a sealed envelope.

    The cost, to me, for them taking the records to the court is only $35 plus mileage... not that much, but I don't believe it's the best choice to have them sent. I fear they might get "lost" in the mail or in the court system.

    Should I allow them to just send the records or should I just let it be?
    The custodian has been supboena...let them answer that subpoena or explain to the court why they haven't.
  9. #24
    weenor is offline Senior Member
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    Quote Originally Posted by casa
    The custodian has been supboena...let them answer that subpoena or explain to the court why they haven't.
    I would have to agree because OP if the records are not properly authenticated they will be inadmissible. I generally let custodians send the sealed records without an appearance because I know the rules of civil procedure in my state and I can tell if records are properly authenticated. OP probably does not need to take that chance.
  10. #25
    octrom66 is offline Junior Member
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    Quote Originally Posted by weenor
    I would have to agree because OP if the records are not properly authenticated they will be inadmissible. I generally let custodians send the sealed records without an appearance because I know the rules of civil procedure in my state and I can tell if records are properly authenticated. OP probably does not need to take that chance.
    This means a lot to me... you all have been quite instrumental.

    Thank you very much.
  11. #26
    octrom66 is offline Junior Member
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    Commissioner did NOT allow viewing of records...

    Quote Originally Posted by weenor
    I would have to agree because OP if the records are not properly authenticated they will be inadmissible. I generally let custodians send the sealed records without an appearance because I know the rules of civil procedure in my state and I can tell if records are properly authenticated. OP probably does not need to take that chance.
    The commissioner accepted the records from the custodian of records but wouldn't allow me to view them. He mentioned that he would "read up on the procedures on viewing hospital records" and the I should too. He then said he was going to leave them sealed until the next hearing (9/29/06).

    I was again stumped on how to request that he show me the records cuz I don't know the law... I guess it would've been best to have money to hire an attorney... don't : (

    Any suggestions as to what I should do now?
  12. #27
    dandap is offline Junior Member
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    I completely know where you are coming from. The court, upon a child custody evaluators recommendations, to RANDOM hair follicle testing not more than 12 times in a 12 month period. However, when he cried that he couldn't afford the follicle tests (approx $150 a pop), the judge ordered 1 follicle test within the next 6 months. The rest of the yearly testings would be FULL URINE PANEL testings. I got the rotten end of the stick because he is a crack user going back 30 years. Your custody evaluator could request ALL of her medical records, etc. to show pattern. The best advice someone gave me was to keep a log of every visit and it's circumstances and every phone call made to the child and how long it lasted and from what # the call came from. I did this for 2 years before finally going to court and it was a huge plus for my case. How old is your child and do you have an attorney?? I am also in California (L.A. County) and could give you some phone numbers to a lab, etc. I would see if you could have the minutes from your last court date that says the judge ordered a follicle test within 24 hours to have her tested, but it sounds like it to me that she is contempt. If it is crack that she is using, it is a very serious situation. Keep track of every little thing!!! Fight for you child and do whatever you can to keep her contact with your child limited or even supervised. (Mine is supervised for my X!)
    For the follicle tests, they have to have at least 1 inch of hair in length and at least a pencil width of hair to test (approx 60 strands). If there isn't enough to test, or she doesn't show, it's deemed a positive test! Good Luck!

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