Ancient Church

Or not.

A frantic week culminated in a half hour hearing this morning, concerning one of the most unusual issues I had ever run across. At issue in this custody case was whether technology had been used to circumvent the provisions of a court order. Representing the mom, I only entered the case late last week, a johnny-come-lately in a dispute that had exploded sporadically over the last seven years.

The last order was entered in February. At that time, Dad was for the first time awarded unsupervised visitation with the child of the parties, conditioned on and within the framework of a series of scheduled hair follicle drug tests. Drug use had been a burning issue in the case from day one, and Dad convinced the judge in February that he had straightened up. Since then, in accordance with the order, he had produced two drug test results, showing him to be drug free. All seemed to be in order.

Except…it didn’t. There were strange behavioral anomalies that suggested problems. We found a 911 call to the residence to break up a fairly serious domestic incident. Mom heard rumors that Dad was still using. And the test results themselves seemed odd, in an indefinable and vague way. They looked pretty normal, but there was something about the way they looked that seemed a bit unlike other drug tests I had seen. Something we couldn’t put a finger on, but disturbing nonetheless. There was also a sense that the chain of custody of the test results was not what you would like. Unfortunately, the February order did not provide for the results to be sent directly to Mom’s attorney. Instead, Dad picked them up, then took them to his lawyer, who then forwarded it to Mom’s lawyer. There was a whisper on the street that the results were being altered. Could it be true?

So her previous lawyer sent a subpoena to the local hospital for the drug test results. Predictably, they refused. Every hospital is terrified of HIPPA these days, and they insisted that they needed a court order or the Dad’s consent to release the records. HIPPA is one of the banes of my existence. Intended to protect the privacy of medical records, it does exactly that amazingly well. The funny thing about that, of course, is that there is nothing people like to talk about more than their aches and pains. If you run into somebody that has just gotten out of the hospital you know that you will spend the next hour or so hearing all about it. Still, there you are. Everybody has to live with HIPPA.

So I turned to the task of wresting the records from the hospital. First, I asked nicely. I pointed out that the Dad had not objected to the subpoena, so that must mean he consented to the release. Just as nicely — and predictably — the hospital declined. Then I faxed them a copy of the February order, and suggested that it gave us the right to get those documents anyway. This time hospital counsel declined.

It was time for a judge, and just by luck I had one in town this morning. Not just any judge either. This one was a judge with a keen interest in the technological side of things. I knew he would be intrigued by the notion that these reports had been photoshopped, and would understand completely how such a thing was possible. So I got his permission to have it heard before he opened court this morning, told the medical records lady to seal those puppies up and come to court and notified opposing counsel of the plan. It goes without saying that she was thrilled.

When we gathered this morning, the first and biggest argument was whether or not I was entitled to the reports. I argued that it was logically inconsistent, and actually suspect, for the Dad to resist. After all, if the hospital copies matched what he had provided, all of this was then over. It would be the end of the story. We weren’t asking for anything except what we were entitled to anyway. Dad’s lawyer, putting up a valiant fight, argued that I had to give more notice, that under the rules in our state he had the right to have the subpoena quashed. I argued in turn that only the hospital could do that, since they were the ones under subpoena. They had not filed a motion to quash, and were asking only for an order requiring them to hand over the records.

The judge nodded in agreement and signed my order. I went down the hall to the Clerk’s office, filed it and headed back. As I was entering his chambers, I crossed myself and prayed for good repentance if I was wrong in all this. Frankly, I was a bit nervous. The effectiveness of any lawyer rests on his or her credibility. Once a judge decides that you can’t be trusted, you may as well hang it up. If I was wrong in this, it might make a judge less likely to listen to me sometime in the future.

I walked in, handed a copy of the filed order to the hospital person, who handed the sealed envelope to the judge. He grinned. “Are we ready for the reveal?” he quipped. He broke the seal, took out the three pieces of paper and we all stood at his desk and looked at them.

Test number one: initially reported as positive for marijuana, but clean for everything else. The real results: positive for multiple substances.

Test number two: reported as clean across the board. The real results: positive for multiple substances.

Test number three: results not yet reported to us. Positive for multiple substances.

Both of the test results that had been provided had been altered. The judge told me to bring him an order stopping unsupervised visitation, and setting the case for hearing in October.

I still can scarcely believe what happened. Never let it be said that computers are not wonderful things. It is just that they are also wonderful for some things we might not wish for. I also feel bad for Dad’s lawyer. She is put in a terrible spot by this. She put up the fight she had to put up, but that is to be expected. If I had been handed altered documents, I would not be a happy camper at all. I can sympathize with what she must be feeling now.