Legal Question in Family Law in Virginia
Ex-wife told ex-husband and kids she's dying so she could get custody...
About 2 1/2 years ago, my boyfriend's ex-wife told him and their kids that she'd been diagnosed with terminal cancer and had 8 months to live. She was being sent to jail for non-payment on child support and he dropped all arrears to keep her out and let the kids live with her so they could spend her last 8 months with her. Recently, her lawyer questioned her about the cancer (as we now suspect she lied to get the kids back) and she denies she was ever terminal..that 5 years ago, she was diagnosed with cancer, but it was not serious; that she'd been treated and has been cancer free since. She told my boyfriend that she lied to her lawyer because she didn't feel it was anyone's business. Either way, he wants to know whether he was lied to; simply for his peace of mind to know that he made the right choice in letting them go...also, for the sake of not leaving his kids in a potentially harmful/mentally abusive situation. Can he have her medical records subpoenaed to find out whether she lied to him and their kids? Would this be viewed in court as mental abuse toward the kids? If she did lie to him and them about it, could it be enough for him to have a chance at regaining getting custody?
2 Answers from Attorneys
Re: Ex-wife told ex-husband and kids she's dying so she could get custody...
The judge is not going to allow the mother's medical records to now be subpoenaed for this type of purpose so that your boyfriend may possibly determine whether she may have fibbed during some prior proceeding which from the court's perspective is now over and done with.
Your boyfriend's proper remedy is to file suit to regain custody of the children and in the course of the litigation it's possible that if the defendant mother has a current medical condition which could possibly affect her fitness to parent the subject children, then the court might possibly approve the turnover of the mother's medical records to the plaintiff(your boyfriend)since it could be material evidence to deciding what's currently in the children's best interests in deciding the custody issue.
Otherwise, your boyfriend can forget it.
Re: Ex-wife told ex-husband and kids she's dying so she could get custody...
Lying about a terminal illness is pretty serious business. It also constitutes fraud to induce the gentleman to give up some of his rights. Five years, however, is a long time to let it go or not act on fraudulent information.
He would have to file a Motion to Amend Custody and then subpoena her medical records and, possibly, her lawyer. If he thinks he has a shot at custody again, these tactics might work.
Good luck.
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