Serving Processes in Family Court Cases
As a professional litigator, trained mediator, and collaborative attorney, Mr. Darren Shapiro finds himself involved within a wide variety of different matters within the pursuits of family court cases. From helping his clients to ensure that they get the best results for their own interests, and how to argue for the client’s about what the interests of their children in matters of custody, parenting time, fka visitation, to helping mediating couples come to terms with schedules for the future of parenting plans. However, before the couple involved in a divorce, or custody case can continue with their new lives, Mr. Shapiro must help them to move through legal processes as carefully, and lawfully as possible. For instance, when one person presents a custody case to the New York Court, laws will require that person to ensure that papers are given to the opposing side through a petition and summons that allows that other party to present their side of things to the court.
Serving processes in family court cases are very important, as the courts of New York suggest that there are few things more crucial in the pursuing the best interests of a child, then making sure that every person entitled to make a claim on the behalf of that child will receive notice of the proceedings about to occur. As Mr. Shapiro reminds his clients, it is up to the parent filing the case to ensure that the other parent is served the papers required in due time - often through in-hand delivery. The law demands that service of a petition and summons should occur within eight days before the first court appearance applies to the other party. Regardless of how a respondent receives the notice to attend court, so long as attendance does occur, and that party admits that papers were served and does not raise faulty service as an issue, the court can take jurisdiction to proceed with the case.
Many cases of parenting time, visitation, custody, and family court matters begin with an order to show cause, specifying how the service should be addressed. In these cases, the judge who signed the order will spell out exactly how the papers should be served - a process which removes the guesswork of service. In these cases, Mr. Darren Shapiro points out the importance of complying precisely with the method of service that is directed, as well as the time guidelines provided. Crucially, though it is the responsibility of the person who files the case to ensure that the papers are properly served, those papers should not be served by that specific party. Instead, another adult without any ties to the case, such as a professional process server, should take this task.
In most circumstances, hand delivery of the summons or petitions is generally considered to be the most effective and reliable method, as it makes sure that the other parent will have the information that he or she needs on time. However, there are circumstances wherein the court might choose other methods of delivery, such as mailing the summons to the respondent in question. This is particularly common in instances wherein someone else seeks to modify an order already made involving the same parties. No matter the method used to serve the papers, proof of service provided in a proper affirmation from an attorney, or affidavit or service should be submitted.
If you discover a problem in delivering the papers required by hand, after due diligence there will be a number of ways to conduct service, with the court’s permission, however. In family court child custody cases, it is crucial to ensure that the method used is allowed by the New York court. For instance, a substitute service might be used when a person of reasonable discretion and age at the place of business or dwelling place for the summoned party - instead of simply being handed to the person directly. Another method could be to mail the summons to the place of business for the summoned person. Importantly, if mailing is used as an option, then the letter must be marked as confidential and personal to ensure it is not opened by other parties. A further option of substitute service is one that is known as "nail and mail". This process refers to the instance wherein a summons cannot be delivered to a person by hand, which results in the information being affixed to the door of their abode, dwelling, or place of business. In these circumstances, the envelope in question will require the phrase "confidential and personal" to be used.
While there may be various ways to perform a service of summons in family law cases, problems can arise when it becomes difficult to reach the respondent on a personal level. Most of the time, the court can allow for alternate means of service, such as those outlined above, but they may also decide to make custody orders on a default basis if the person involved is considered to have been served, yet is not present for the court procedure. However, these default orders may be subject to vacature in cases wherein the defendant can prove that they had a valid defense or excusable default. The lack of reliability surrounding alternate options for service of summons can mean that people who aren't served through hand delivery have a greater chance of vacating default orders.
Keeping the above in mind, Mr. Shapiro also reminds his clients that another form of service may be given through publication - though there is some case law out there that suggests service by publication may not be valid in child custody cases. Rather, publication and alternative methods of service can only be allowed if hand delivery is not possible following due diligence. The court must be able to see that due diligence has been addressed so that they can continue to order service in a manner that they deem to be reasonably calculated. Yet, even with good cause, service by publication is regarded by the courts of New York to be more of a symbolic gesture, than a suitable way of offering notice.
If you would like to discuss the details of a particular family law case, or find out more about the complications of service, please get in touch for advice and guidance from Mr. Darren M. Shapiro. You can contact us by phone at: (516) 333-6555, or through our contact form.