Material Change in Circumstance...

[WILSON]

Soc and anyone better informed than me,

Divorce in june last year.  One 2-year-old daughter.  handled my case pro se.

Visitation is as follows: Every other Thursday - Sunday.  On the opposite week I have my daughter Tuesday - Thursday.

My ex-W works from 12 p.m. - 9 p.m. and usually gets home at approx 10 or 11 p.m. after baby is asleep.

I have takem the baby to all of her MD appointments (w/out X for last year, her one dentisit appoinment, and took her to get her flu shot).

Since court in June the following has happened:
1.  My daughter was diagnosed as having asthma and placed on three times daily breathing treatments - X smokes I do not.

2.  X's sister moved in their house w/ her 2 kids.  Approx 2 months ago DFCS (our state child protection agency) took custody of my X's sister's 2 kids (one a 6 year old boy and the other a one year old girl).  They took them because X's sis is seeing a psychiatriust and called DFCS herself and stated "I can't handle my kids or being a parent".  She has no unsupervised visits w/ her own kids.

3.  One month ago my X's 16-year-old daughter who still lives at home (not my child we were only married a little over 2 years) gave birth to a little boy who now also lives in the house.

4.  On 02/07/04 i had to rush my daughter to ER in middle of the night as she was crying out her 'tummy hurt'.  Xrays revealed that both her intestines were full of stool.  My daughter has had an issue w/ constipation - even though her mother does not seem to think so.  MD gave her a medication to mix w/ her juices twice a day and stated she would need it for atleast a year.  MD also stated that initially it may cause baby to have diarrhea.  he also referred my baby to a gastroenterologist.  She has an appt. scheduled for next month.

5.  My X stated to me last Thursday 2/12/04 that she would no longer give the baby her breathing treatments while in her care as she did not feel she needed them.  X also stated she was no longer going to give her the stomach medication the MD ordered on 2/10/04 anymore as she felt our daughter does not need it either.

6.  My X tried to change MDs yesterday.  My daughter had a 9 a.m. appt w/ a MD my X chose.  however, the MD refused to see her.  yet my X had already sent the records from the MD I was using to this new MD.  so technically for the moment my daughter has no MD.  The MD I was using is really fed up w/ my X as she has twice (2/12/04 and yesterday) went to his office and caused a disruption as well as question his judgement.

7.  Thus, yesterday I went to DFCS myself stating I had a concern about my daughter's safety as my X's sister is my daughter's primary caretaker daily from 11 a.m. to around 11 p.m.  I stated if DFCS could not trust her w/ her own kids why should she be allowed to keep my daughter.  I also told the DFCS worker my concerns about the medication issue.  DFCS worker stated that even though they had custody of X's sister's kids it did not automatically mean she was a threat to my daughter's safety.  DFCS worker also stated that the medication issue was a matter of choice on the mother's part - even though I signed a release and they got all of the MD's records.

8.  DFCS stated they needed a "specific incident" of supposed neglect to investigate.  They basically stated my X could use a convicted child molester as her caregiover choice for our daughter so long as the X-felon was not convicted of abusing my daughter or it violated this person's parole.  The worker sympathized w/ my situation but stated legally her hands were tied.

I DO NOT have the right of first refusal.

I am still living w/ my girlfriend (the same one that I have since the separation in March of 2002).  My daughter calls her Mommy.  We consulted a psychologist about it and psy stated that it was ok and not to push child to call my girlfriend by her name - even though this is what my X wants.
I have no atty nor can I afford one.

O.k. - sorry so long winded.  My ?s are as follows:

1.   Should I file a pro se motion requesting to add the right of first refusal?

2.  Does anything I mentioned meet the legal standard of change in material circumstance?

3.  Does her not following MD's advice constitute cause for an emergency hearing, or the fact that the sis (who has lost custody of her own kids) is caretaker for 9 hours daily?

4.  Do you think, considering the already liberal visitation schedule I have and the fact that I have taken baby to all appts for last year, give me a chance of 50-50 custody now, or is it too late?

5.  My girlfriend is willing to marry me if it will help us in court (her and the baby really love one another - I get jealous of em sometimes) - would this help us at all in court?

6.  The fact that she smokes around the baby, deespite the asthma ( and since it was diagnosed since court) would that be a decent issue to bring up?  i.e. seek an injunction about her smoking around my daughter?

7.  I have heard of expert witness fees.  If I subpoena the MD do I have to pay him a fee for his testimony in court, or if I subpoena him does he have to come and tell the truth as he knows it?

Thank you and anyone else so much for any and all assistance.

[Kitty C.]

**6. My X tried to change MDs yesterday. My daughter had a 9 a.m. appt w/ a MD my X chose. however, the MD refused to see her. yet my X had already sent the records from the MD I was using to this new MD. so technically for the moment my daughter has no MD. The MD I was using is really fed up w/ my X as she has twice (2/12/04 and yesterday) went to his office and caused a disruption as well as question his judgement.**

Your daughter is NOT without a doctor, as the records were NOT transferred.  Your doctor's office made copies of their record and sent it to the other physician, as all records are the property of that specific medical facility.  It's a common misconception that patients think their records are THEIR property, and they aren't.  Go to any hospital for your records and not only will you get photocopies, but they will also charge you.  Many facilities will not charge copying fees if the records are requested by another practitioner.

And in case you're wondering, I worked in medical records for many years and extensively with ROI's (release of information).  The one thing I'm curious about, tho.  Were you aware in advance of the other doctor wanting copies and did your current doctor have you sign an ROI to allow the other physician to have those copies?  If not, then there might very well be a HIPAA violation here.  HIPAA is the new confidentiality and privacy act that went into effect about a year ago, making it harder for others to access your records.  As the parent who was legally singing for your daughter with their office, they should have had you sign something so that they could give that information to the other doc.

[socrateaser]

OK, I'm gonna go through your facts and comment on the usefulness of each for the purpose of modifying custody. Then I'll address the other questions:



>1.  My daughter was diagnosed as having asthma and placed on
>three times daily breathing treatments - X smokes I do not.

This is EXTREMELY relevant. The parent smokes and the child is in distress.  If the mother fails to stop smoking then she acts affirmatively against the child's best interests, and that rises above the threshold of a change in circumstances. The mother may have smoked all along, but the child's diagnosis is the change.


>2.  X's sister moved in their house w/ her 2 kids.  Approx 2
>months ago DFCS (our state child protection agency) took
>custody of my X's sister's 2 kids (one a 6 year old boy and
>the other a one year old girl).  They took them because X's
>sis is seeing a psychiatriust and called DFCS herself and
>stated "I can't handle my kids or being a parent".  She has no
>unsupervised visits w/ her own kids.

Irrelevant.

>
>3.  One month ago my X's 16-year-old daughter who still lives
>at home (not my child we were only married a little over 2
>years) gave birth to a little boy who now also lives in the
>house.

Irrelevant.

>
>4.  On 02/07/04 i had to rush my daughter to ER in middle of
>the night as she was crying out her 'tummy hurt'.  Xrays
>revealed that both her intestines were full of stool.  My
>daughter has had an issue w/ constipation - even though her
>mother does not seem to think so.  MD gave her a medication to
>mix w/ her juices twice a day and stated she would need it for
>atleast a year.  MD also stated that initially it may cause
>baby to have diarrhea.  he also referred my baby to a
>gastroenterologist.  She has an appt. scheduled for next
>month.

This may be relevant if the problem repeats and the mother fails to use due care to remedy.


>5.  My X stated to me last Thursday 2/12/04 that she would no
>longer give the baby her breathing treatments while in her
>care as she did not feel she needed them.  X also stated she
>was no longer going to give her the stomach medication the MD
>ordered on 2/10/04 anymore as she felt our daughter does not
>need it either.

Question is, what does an MD believe? If a doctor recommends a course of action and states that the child remains at risk, then the mother's actions are against the child's interests and that creates a change in circumstances.

>
>6.  My X tried to change MDs yesterday.  My daughter had a 9
>a.m. appt w/ a MD my X chose.  however, the MD refused to see
>her.  yet my X had already sent the records from the MD I was
>using to this new MD.  so technically for the moment my
>daughter has no MD.  The MD I was using is really fed up w/ my
>X as she has twice (2/12/04 and yesterday) went to his office
>and caused a disruption as well as question his judgement.
>

This is relevant as it gives you a potentially friendly witness to you cause. Otherwise it's not relevant.

>7.  Thus, yesterday I went to DFCS myself stating I had a
>concern about my daughter's safety as my X's sister is my
>daughter's primary caretaker daily from 11 a.m. to around 11
>p.m.  I stated if DFCS could not trust her w/ her own kids why
>should she be allowed to keep my daughter.  I also told the
>DFCS worker my concerns about the medication issue.  DFCS
>worker stated that even though they had custody of X's
>sister's kids it did not automatically mean she was a threat
>to my daughter's safety.  DFCS worker also stated that the
>medication issue was a matter of choice on the mother's part -
>even though I signed a release and they got all of the MD's
>records.

The proper remedy to this problem is a restraining order against the sister acting as guardian, not a custody mod.

>1.   Should I file a pro se motion requesting to add the right
>of first refusal?

If you can prove the smoking facts, then you should move for a custody mod.

>
>2.  Does anything I mentioned meet the legal standard of
>change in material circumstance?

See #1 above.
>
>3.  Does her not following MD's advice constitute cause for an
>emergency hearing, or the fact that the sis (who has lost
>custody of her own kids) is caretaker for 9 hours daily?

Motion for Temporary Restraining order.

>
>4.  Do you think, considering the already liberal visitation
>schedule I have and the fact that I have taken baby to all
>appts for last year, give me a chance of 50-50 custody now, or
>is it too late?

Irrelevant to the question of change in circumstances because nothing has changed. Relevant IF you get a custody hearing.

>
>5.  My girlfriend is willing to marry me if it will help us in
>court (her and the baby really love one another - I get
>jealous of em sometimes) - would this help us at all in
>court?

Couldn't hurt.

>
>6.  The fact that she smokes around the baby, deespite the
>asthma ( and since it was diagnosed since court) would that be
>a decent issue to bring up?  i.e. seek an injunction about her
>smoking around my daughter?

Move for custody mod. Settle for restraining order/injunction.

>
>7.  I have heard of expert witness fees.  If I subpoena the MD
>do I have to pay him a fee for his testimony in court, or if I
>subpoena him does he have to come and tell the truth as he
>knows it?

You can subpoena the doctor without expert fees, but he can only testify to the facts of which he has personal knowledge. As soon as you ask his opinion about a medical issue, the court will almost certainly refuse to admit the testimony unless you agree to the expert witness fees.

And, of course, if you subpoena the doctor without offerring the fees, you may get an unhappy doctor and a lousy witness, which is worse than no witness at all.