The Subpoena in Your North Carolina Family Law Case

Child CustodyI frequently get asked about subpoenas in North Carolina family law cases. What is a subpoena? What does a subpoena do? What do I do if I get one? How do we get one served?   Let’s spend some time answering these questions.

What is a subpoena?

Under North Carolina law, Rule 45 of the Rules of Civil Procedure governs subpoenas and the process around them.  A subpoena is a command to show up in court and/or produce documents at a certain place and time.

Importantly, a subpoena may be issues by an attorney, clerk or judge.  A pro se party may not sign a subpoena and must get a court official to issue it for the self-represented party.

What does a subpoena do?

A subpoena accomplishes the goal of making sure a witness is in court with documents related to the case.  For example, if you want a witness to show up in Wake County District Court to testify in your child custody case, a subpoena is served on that witness in advance to be in court.  It also is a way of getting documents prior to court from non-parties to the litigation.  For example, a bank may be served a subpoena to compel the production of certain bank account records prior to an alimony hearing.

A subpoena cannot be used to compel a party to provide documents prior to a hearing.  To accomplish this one must use a Rule 34 request for production of documents.

What do I do if I get served with a subpoena?

You should immediately contact your lawyer.   If an objection is not made promptly, the right to object to the scope and timing of the subpoena is going to be lost.   You should gather any documents requested and show up at the designated place and time as set forth in the subpoena.

How is a subpoena served?

Typically service is performed by certified mail, sheriff’s deputy, or by an adult who is not a party to the case (for example a private process server or paralegal).    There are limitations on subpoenas, for example, it is typically not appropriate to serve an out-of-North Carolina person to appear in court in North Carolina.

 

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.