Ex parte motion?

[krissy2356]

My ex and I share joint legal custody of my son. She has primary physical and I have partial. Lately we've been getting into it over medical issues, as she has failed to disclose dr. information and other such info. She recently lied to me repeatedly about important medical issues and now she is hell-bent on keeping me away from my son's doctors.

I finally was able to hunt down my son's eye doctor and after much phone tag, I finally got a call from the office in which I was told that they have a legal document restricting me from having any access to my son's medical records. They wouldn't say what type of document this was. Could she have filed an ex parte motion barring me from medical records? Why would a judge even hear such a motion when there is no reason at all for this type of filing?

My involvement has increased due to the fact that I cannot trust that she is taking care of my son properly, and now that I am trying to get information, she is trying to shut me out. Why would the court support her in this groundless effort when there is zero evidence to support whatever claims she has made?

I didn't think ex parte motions dealt with this kind of issue when there are clearly two sides to the story and I pose no threat to anyone by having medical information. Apparently the paper said something about how we are in a custody battle and because I this I am not to have contact with the doctor until the hearing...can you possibly shed some light?

Thanks!

[socrateaser]

>I finally was able to hunt down my son's eye doctor and after
>much phone tag, I finally got a call from the office in which
>I was told that they have a legal document restricting me from
>having any access to my son's medical records. They wouldn't
>say what type of document this was. Could she have filed an ex
>parte motion barring me from medical records?

Yes. But, you should have been served with a notice of the hearing so you could appear and defend. If you weren't served, then the order would be subject to being set aside for unfair surprise.

>Why would a
>judge even hear such a motion when there is no reason at all
>for this type of filing?

Maybe there were allegations of child abuse. I don't know.

>
>My involvement has increased due to the fact that I cannot
>trust that she is taking care of my son properly, and now that
>I am trying to get information, she is trying to shut me out.
>Why would the court support her in this groundless effort when
>there is zero evidence to support whatever claims she has
>made?

Because if you weren't at the hearing, then the other parent's sworn declaration of abuse would be sufficient to obtain a court order restraining you from accessing the info.

>
>I didn't think ex parte motions dealt with this kind of issue
>when there are clearly two sides to the story and I pose no
>threat to anyone by having medical information. Apparently the
>paper said something about how we are in a custody battle and
>because I this I am not to have contact with the doctor until
>the hearing...can you possibly shed some light?

Whatever paper exists, if it was ordered by the judge, then it is filed at the courthouse in the casefile, which means you can go and read it for yourself. If there's an order, then you can move to have it set aside on grounds that it was the product of unfair surprise and on whatever other grounds might defeat the underlying allegations.

If it wasn't ordered by a judge, then whatever the paper is, it has no legal authority, assuming you have joint custody, and I would file a motion for an order granting you full access to any healthcare info and/or service providers.

[krissy2356]

I was out of the country on vacation--one that my ex knew about--last week. When I got back just the other day, I had a few postcards saying that I had certified mail at the PO, but since the sender name was not on the card, I assumed it was just some things I had been waiting for from eBay and a letter for my wife re: another matter.  Can certified mail count be used to serve/notify?

If so, is it possible that I somehow missed this hearing??? Could it have been set that quickly? I called my lawyer and he had no knowledge of anything happening...

[socrateaser]

>I was out of the country on vacation--one that my ex knew
>about--last week. When I got back just the other day, I had a
>few postcards saying that I had certified mail at the PO, but
>since the sender name was not on the card, I assumed it was
>just some things I had been waiting for from eBay and a letter
>for my wife re: another matter.  Can certified mail count be
>used to serve/notify?

You're speculating where it's unnecessary to do so. The certificate of service will be at the courthouse with the motion and the order. Go read the file and you will know exactly how you were served.

Where there is a pending case, like yours, you can be served a motion by certified mail or even 1st Class mail (or your attorney must be served, if you're represented). However, where an ex parte restraining order is sought, you must generally be served personally, so you have notice.

Either way, if you can prove you were out of the country for an extended period, then you could use that as a rationale for a set aside. Otherwise, you're likely stuck.

>
>If so, is it possible that I somehow missed this hearing???
>Could it have been set that quickly? I called my lawyer and he
>had no knowledge of anything happening...

If you have a lawyer, then your lawyer should have been served, unless it was for a restraining order, which means that you must be personally served.

Regardless, STOP GUESSING. It's not worth the effort. Go to the court and find out.

[hagatha]

Soc,

Could it also just be a notice from opposing counsel stating there is on going litigation and as such the doctors office should not release info to dad, and not an actual order.

Should/could the dad's attorney subpeona a copy of this "order" if it is indeed a letter sent to the office as proof the mother is limiting dad's involvement with the child's medical care?

The Witch


Remember . . . KARMA is a Wonderful Thing!!!!!

[krissy2356]

I am off from work today and have my son and baby daughter in my care, so I'd rather not drag them down to the courthouse. I did call the courthouse, and I did find out that the most current paperwork in my file is that for the extended custody hearing on 9/27 which would've been entered at the short hearing in June. I was told that no othe info. could be released over the phone.

I guess this means, as TW suggested, that perhaps the document was indeed provided by my ex's attorney? How can this when we share legal custody of my son? How can a lawyer decide that my rights should be suspended?

Many thanks.

[socrateaser]

>Soc,
>
>Could it also just be a notice from opposing counsel stating
>there is on going litigation and as such the doctors office
>should not release info to dad, and not an actual order.

Yes.

>
>Should/could the dad's attorney subpeona a copy of this
>"order" if it is indeed a letter sent to the office as proof
>the mother is limiting dad's involvement with the child's
>medical care?

Either there is or is not an order in the court file restraining release of the information. If there is, then the adverse parent needs to move to set the order aside. If there isn't, then the adverse parent needs to file a motion to clarify so as to obtain an order expressly granting access to healthcare info and providers.

As part of the motion, the adverse parent need only allege that the physician is refusing access due to the existence of some document which the physician has refused to produce or identify. The physician or his/her custodian of records can be subpoenaed to the hearing with the document.

Trying to obtain the document seperately from the physician is just a waste of time and money.

[socrateaser]

>I guess this means, as TW suggested, that perhaps the document
>was indeed provided by my ex's attorney? How can this when we
>share legal custody of my son? How can a lawyer decide that my
>rights should be suspended?

If the physican has bee "scared off" by something sent from opposing counsel which has no legal authority, then it doesn't matter whether there is any actual authority behind the attorney's actions -- the physician has complied.

You have a lawyer -- instruct him/her to fix the problem immediately. Your appear not able to be bothered with a trip to the courthouse. This, frankly indicates a willingness to take a beating and live with it. If that's how you defend your rights, then you will get what you deserve -- nothing.

Not trying to be harsh, but that's how the world works -- you either fight for your rights, or they will be usurped by someone else who is willing to fight.

[krissy2356]

"You have a lawyer -- instruct him/her to fix the problem immediately. Your appear not able to be bothered with a trip to the courthouse. This, frankly indicates a willingness to take a beating and live with it. If that's how you defend your rights, then you will get what you deserve -- nothing."

Touche. I'll try and get a sitter so I can go down there and see for myself today.

Thanks, Soc.