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Drug abuse, a fraud on the court, and reminder to use the Evidence Code

Posted by Haleh Rashidi | Dec 16, 2016 | 0 Comments

A recent case I heard about, the boyfriend of the mother, who had primary custody of the 8-year-old child, called the father to inform him that the mother was using methamphetamine and that the father should probably seek custody. That is exactly what the father did. The mother denied she used meth, however tested positive for it. The dad showed up for the hearing expecting a slam-dunk ruling where he would be given primary custody; that did not happen. The mother provided a prescription from her doctor for Desoxyn (which is a prescription for meth). Since the mom was not on elicit drugs, the court just ordered a round of 730 evaluations and the mother maintained custody for months thereafter. While reviewing the case, the 730 evaluator could not figure out why mom was given a prescription for Desoxyn so she called her doctor. The doctor replied, "I don't know what you are talking about... I never gave her such a prescription." When this fraud, forgery, and perjury, finally came to light, mom's attorney immediately withdrew and dad was given custody.

So what went wrong here? Much too often, things get a bit too loose in family court. Rules of Evidence and the CCP are often glossed over or misapplied. In this case, the prescription was hearsay and never should have been allowed to come in or considered. Even a declaration from the doctor in question would have been inadequate as she must have been cross-examined: "Why did you give her Desoxyn?"

The lesson here is, by getting too loose with the rules, not only you may be doing your client a disservice but you maybe conducting malpractice.

About the Author

Haleh Rashidi

Haleh's career as a family law attorney started in the chambers of the Honorable Elizabeth Sichel, Riverside County Superior Court Family Law Judge. Working for Judge Sichel gave her invaluable experience and insight into how judges decide cases and hence how to win a case.

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