Service by Facebook in a New York Divorce?

In a recent case decided by the New York County Supreme Court, Baidoo v. Blood-Dzraku, 2015 N.Y. Business man looking at modern icons and symbolsMisc. Lexis 97 (New York County S.Ct. 2015), service in a divorce case through Facebook was ordered as valid service.  Previously, I have blogged about service problems in divorces and service by newspaper publication and other alternative methods. To recap, most people are familiar with the concept of the in-hand delivery of court papers as it has been frequently depicted in movies and television shows throughout popular culture. Generally, courts prefer this form of delivery, as it is often the most reliable way of ensuring that the individual in question has received the papers as intended. In New York, under the Civil Practice Law and Rules (CPLR) Section 308(1) this service is enumerated, and the process server swears an affidavit that they did deliver the paper by hand. After an action has begun, the CPLR permits 120 days for the service to be made.

Unfortunately, the issue with personal service is that in order for it to be accomplished successfully, the plaintiff must have some method of locating the defendant. Even in circumstances where the location of the defendant is known, there are times when it is logistically difficult for a server to gain the proximity required for a personal delivery. Fortunately, the Domestic Relations Law offers a solution for individuals who face these circumstances, permitting plaintiffs to utilize alternative methods beneath the CPLR that does not require an “in-hand” delivery but only if the court orders alternate service is permissible. Despite this, some people still believe that the alternatives expected in these legal proceedings are not current with the modern practices of the times.

Up to a decade ago, most courts considered the concept of delivering a summons via email to be the latest in cutting edge civil practices. Since that time, email has almost completely replaced traditional mail as the standard for written communication. Although current legislature has not yet made emailing a statutorily authorized method for the service of process, numerous courts have begun to routinely permit it as an alternative. With this in mind, it would be reasonable to assume that in the developing law of service of process, the use of social media sites throughout the internet as forums for summons could be the next frontier. After all, social media is becoming an increasingly reliable way to communicate with individuals who are otherwise difficult to pursue.  Divorce service by Facebook is a reality now.  Service through social media has been allowed in a New York child support case.  There is no reason not to think about it for child custody matters and other family law issues as well under proper facts.

Using Facebook as a Method of Service

In the aforementioned New York City case, a judge gave a woman permission to serve divorce papers through the medium of Facebook in what is being hailed as a first for the state. The Brooklyn-based wife sought a divorce from a man that she had married in a civil ceremony in New York, 2009. Unfortunately, according to her attorney, the husband in question had been impossible to locate for several months, aside from a phone number and activity on his Facebook page. After speaking to her husband by phone, the wife was informed that he had no fixed place of employment or residence, and refused to make himself available so that he might be served with divorce papers. Private investigators were used in order to try to find him; all to no avail.

The wife was asked to prove, first and foremost, that the Facebook account in question belonged to her husband, through evidence of their correspondence. After which, she and her attorney were permitted to serve the divorce papers through a private message through the social media platform once a week for three weeks consecutively. Following that time, the Husband would be considered served and if then he did not appear in the case the judge would be permitted to enter a default judgment of divorce.

Although this approach to service of process is relatively unconventional, the courts agreed that under the circumstances, service by Facebook, though it may be non-traditional and novel, was the best form of service available that reflected the constitutional standards of due process. Not only was the concept reasonably calculated in order to effectively provide the defendant in question with the notice that he was in the process of being sued for divorce, all indications available suggested that the action would achieve what is intended to be the goal of any method of service: actually delivering the summons to the defendant.

When will Service by Facebook be allowed in New York?

The attorney for the Plaintiff in that case pointed out there have been commercial and federal cases in the past that have permitted service to be carried out through the medium of Facebook, however only some states currently allow it. In September of last year, a Judge in the New York Richmond County Family Court permitted a woman to be served through Facebook in modifying an existing order for child support.

It seems that today, we live within a world where people can easily disappear from typical social interaction, yet manage to resurface more frequently on the internet, making the web the most reasonable place to further communication. However, at this point, there is a split among the courts of America as to whether social media service should be allowed. First of all, there have only been a handful of decisions reported, mostly from courts in federal districts, which have considered the issue of service of process being accomplished using social media. In these cases, there has been an almost even split between those decisions which approve the concept, and those which reject it.

Secondly, as is bound to be discussed further, the cases that have permitted service by Facebook so far have only agreed to do so on the condition that the papers commencing the lawsuit are served via another method as well. In simple terms, by seeking permission to effectuate service of the divorce summons by delivering it to the defendant through a private message on Facebook, the plaintiff was asking the court to venture into unchartered waters, without any clear judicial precedent.

Despite all of this, that court and others have concluded that in certain circumstances, Facebook service is a reasonably calculated method of giving notice to the defendant effectively, while other methods were impractical. In the circumstances provided in the case above, service by Facebook was the only form of service that comports most with the constitutional standards expected by due process.

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