Who Do I Need to Subpoena for My Custody Action / by Cassandra Hearn

Custody is often one of the most contentious issues in any divorce.  Every parent wants what is best for his or her children, and in a divorce, the parties will often disagree what that means.  If the parents cannot come to an agreement, the parties will have to go to a trial and present evidence to a judge in order to support the proposed parenting arrangement they each suggest.  This evidence will often include testimony from friends, family, teachers, or other service providers.  Subpoenas are orders from the court requiring a person to attend and provide testimony.  Deciding who to subpoena for your custody action is an important step in developing your trial strategy.


First it is important to understand who you do not need to subpoena.  You do not have to issue a subpoena for the other parent: he or she is already required to attend if he or she wants to make a case for his or her suggested custody arrangement.  In addition, you do not have to issue a subpoena for anyone who is voluntarily coming to testify on your behalf.  Even if they are coming voluntarily, they may need a subpoena to show their school or work, so you should confirm before not issuing one for them.  You also need to keep in mind that not every person is subject to the subpoena powers of the court.  Some people cannot be compelled to come to court because they are too far away, while others, such as your divorce mediator, cannot be forced to provide testimony because the information they have about your case is protected by law.


The people you need to subpoena are those who you are not totally sure will show up to court unless they are forced to do so.  These will be people who have specific knowledge about your child or the other parent that is directly relevant to the issue of custody.  These may be teachers, counselors, or medical providers.  You will want to avoid issuing subpoenas to every person who has every had the opportunity to observe your parenting skills or see your spouse make a poor parenting decision.  Discuss with your attorney the witnesses who have the best first-hand knowledge concerning the most important issues and limit your subpoenas to those individuals.  You may also need to consider issuing a subpoena duces tecum.  These subpoenas are what are used to obtain documents from people or businesses who are not a party to your divorce.  For example, if you need a copy of your spouse’s time cards from work, you may need to issue a subpoena duces tecum to the employer.


Making a decision about who to call as a witness at your divorce trial is highly specific to your case.  We have experience in helping our clients to craft the best strategy for their trial.