Myth No. 4: I can subpoena children to court by serving EITHER parent with a subpoena.
Not exactly. RCr 7.02(2) provides in part that “[a] subpoena for an unmarried infant shall be served upon the infant’s resident guardian if there is one known to the party requesting it, or, if none, by serving either the infant’s father or mother within this state or, if none, by serving the person within this state having control of the infant…” On those occasions where the parents are divorced and custody is granted to one parent, the defense lawyer must serve the subpoena on the custodial parent, not the non-custodial parent.
The rule specifies that either parent can be subpoenaed only where there is no known “resident guardian.” If you serve your own client with the subpoena, and he does not have custody of the children, you will not prevail when the children do not show up and you have to prove to the court proper service of the subpoena in order to get a continuance or other remedy. Certainly, the non-custodial parent qualifies as the “resident guardian” when the child is visiting pursuant to the decree of custody; but when the child is not visiting the resident guardian will be the custodial parent. To avoid any doubt, subpoena both parents.
an excerpt from The Subpoena: Ethical Use and Unethical Myth-Use byb Scott West