PaulJMD. You have been answering my questions about my son's "nightmare" custody case since January of this years. She has temp sole custody of her toddlers, and alternating weeks of my son's baby since Feb when the the DV case gave her the option to get a job and an apartment. She obtained the help of a local church lady, and the 6-month criminal probation is up in August. She was arrested DUI 2 months ago, and is in fight mode.
Country relating to Question: United States
Court hearing next Tuesday.
Welcome back, what is your further question for us?
We need to know how to present his case Tuesday. No attorneys, she has DUI, church lady is writing a letter to support my son. His girlfriend is demanding all 3 kids, who are now with my son. She had a recent knee surgery and gotten vicodin, wants doc to change it to percocet, and she is obviously using now. She called me 6 times yesterday (first time since January when she spent a week in jail), and after 6 calls her stories became ludicrous.
First thing you need to do is bring in proof of the DUI. There is no way to blame anyone else for you being intoxicated above the legal limit. Also, your son needs to raise the use of pills to the court and provide proof of that as well. She is harassing you and your son, so you really need to bring in witnesses to court to support your case. Since she is having the church lady write a letter, when she tries to introduce that letter and if the church lady is not actually there to testify your son needs to say "I object to that letter based on it being hearsay and excluded by the rules of evidence." The best evidence rule is that the witness must appear to testify and be able to be cross examined by your son and he cannot cross examine a letter.Your son needs to have actual evidence, court documents or actual witnesses to testify to each thing she has done to overcome her crazy claims.
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Sorry. The church lady is writing to support my son's case now--not hers. We don't have access to the DUI or medical records, and in the past even sackfuls of empty bottles were dismissed. The uncle aunt lost their emergency appeal. She doesn't appear drunk but more "absent" when drunk, and very emotional when really drunk, admitting that she has "emotional issues," but no way will she go to rehab because she doesn't like alcohol, and the pills are for her "pain."
The church lady needs to actually come to court to testify, since the same principal applies regarding the best evidence and hearsay of the letter. The DUI records are available as public records in the clerk of court's office where the case is set. Also, you need to have him present actual witnesses to testify regarding her conduct. The court needs to hear actual testimony about how she has not brought the children to her because of her erratic conduct and a reasonable fear for the safety of the child. If he has no witnesses that can testify regarding her immediate conduct being unsafe for the child, then he will need to turn over the child because he would not have enough evidence to justify it.
Sorry, I just found out that he had already obtained from the court clerk a copy of "Subpoena for Production or Inspection," which he never filled out.
He should have filed this and served it well before this hearing unless this is an emergency hearing. He can fill it out now and ask the judge to sign it at the hearing Tuesday and the judge can deny his request if this is intended to be a final motion hearing. He fill out a separate subpoena for each thing on your list, except the mother's testimony and the church lady's testimony, he would have to subpoena them as a witness. The subpoenas do not go to her, they go to whoever has the records (hospital, doctor, CASA etc). All of these things should really have been done while you have been waiting for the hearing though and it may anger the judge to now have to reset the case for another hearing. However, really it is his only choice if he wants to use the information and have the witnesses for the hearing.
thanks I know you're right. So, what can he do at this hearing that won't upset the judge? He wishes he hadn't asked for this hearing until after the DUI case is completed, but my husband urged it and now it's done.
If his witnesses are not available, then on Monday he needs to file a motion for continuance and ask the court to continue so he can have his witnesses present. I am afraid that is about all he is going to be able to do at this point other than go through the hearing and try to present whatever evidence he actually has already. He should be able to get the DUI information on Monday from the clerk at the court where her case is.
JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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