When a custody case is brought to a New York family court, the law requires the papers to be served to the other side, often in the form of a summons and petition. It is up to the parent that is filing the case to ensure that the other parent in the custody argument receives the papers – generally through in-hand delivery. Ensuring the service of papers is essential, as the law recognizes that there are few things more important in child custody cases than ensuring that every person entitled to make a claim on the behalf of the best interests of the child will receive notice of the proceedings taking place. Importantly, the law dictates that services of a petition and summons should be given at least eight days before the first court appearance is required of the other party. However, in practice, it is worth noting that regardless of how a respondent may receive the notice to attend court – so long as they attend and admit that they were served the papers, then the court will be given jurisdiction, and have the right to proceed with the case.
In cases of custody, visitation, or other matters brought before the family court, I often find that the case is started using an order to show cause, instead of a summons, and a petition. While the petition underlines what the person presenting the case to the court wants to address, the order to show cause specifies how service should be addressed. When service is directed pursuant to the Order to Show Cause, how to serve the papers is spelled out by the judge who signed the order. It takes the guess work out of service, however, it then becomes important to precisely comply with the method and timing of service that is directed.
Hand delivery of the Order to Show Cause, or summons and petitions is generally regarded to be the most effective, and reliable form of delivery in child custody and other cases, as it ensures without doubt that the other parent receives the information that he or she needs. However, there are cases in which the New York family court may choose to mail the summons to the respondent(s) in question – particularly in circumstances wherein someone else is seeking to modify an order that was already made involving the same parties. If the respondent in the case attends court, after receiving the mailing, and submits to jurisdiction, then the method that was used to serve the papers is not an issue. Indeed, once a petition has been filed, the attorney for the petitioner, and that individual will also receive the papers back from the court. While it is the responsibility of the person filing the case to ensure that the other parties are properly served, it’s worth noting that the party involved should not actually serve the papers themselves. Instead, it’s best for another adult without ties to the case to do this – usually a professional process server. Crucially, proof of service provided in a proper affidavit of service, or affirmation from an attorney should be made and submitted.
If there is a problem effecting in hand delivery of the papers, after due diligence, there are many different ways in which service can be conducted. But, in Family Court child custody cases, only if a court allows that alternative method of service by an order of the court. For example, substitute service refers to the process wherein a summons is given to a suitable person of a reasonable age and discretion at the dwelling place or place of business for the summoned party – rather than being handed directly to the person itself. Another method that service could take place is either by mailing the summons to the person’s last known residence, or mailing the summons to the person’s place of business. Importantly, when the summons is delivered through mail, it is important for the letter to be classed as personal and confidential to ensure that it is not accidentally opened by other parties.
Another option to substitute service is a process known commonly as “nail and mail”. This means that when a summons cannot be delivered to a person either by hand, or through mail to their business address or last-known residence, it can effectively be affixed to the door of the dwelling, usual abode, or place of business. Again, the envelope in question will need to bear the phrase “personal and confidential”, and no information should be shared on the envelope.
Although there are numerous ways to perform service of summons in a family court case, the problem arises when it is not possible to reach the respondent with the papers on a personal level. In many cases, the court can order service by an alternate means, such as those above, but it may also decide to make an order of custody on default if the person in question is considered to have been served, yet has not shown up to court. In spite of this, it is worth noting that these default orders can be subject to vacature if it is possible for the defendant to prove to the court that they can articulate a valid defense, and excusable default. I have discussed the process of vacating a default in a prior blog article, which can be seen for further information regarding this process. Because of the uncertainty surrounding the alternate ways of serving notices of proceedings in any way other than personal hand delivery, I have often found that those who aren’t served through in hand delivery have a greater chance of vacating a default order.
With that in mind, some of the other methods of service the court may allow include the possibility for service by publication. However, there is some case law out there which states that service by publication is not valid in a child custody case. Publication or any other alternative method of service on a party can only be order if in hand delivery is not possible after the exercise of due diligence. Due diligence must be proven to the court and then a court can order service in a manner that they believe to be reasonably calculated in order to give notice. However, even with good cause, service by publication is regarded by the New York Court to be a symbolic gesture, and not always a suitable way of providing notice.
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