Everyone has the right to be present or at least be put on notice of a court matter, especially where their rights as parents are affected.  This means that in child support, child custody, child visitation, paternity, child abuse/neglect, domestic violence and divorce matters, the other party (typically the parent and/or spouse) has the right to be notified that the other party has commenced a proceeding in Family or Supreme Court.  If that party chooses not to appear ( and default) then that is their prerogative, but they still have the right to be made aware of the case.  This rule applies to everyone, even parents that have not paid child support, that have not visited with the child or visited sporadically or the parent that has abused and/or neglected their child.  This is because everyone has the opportunity to be heard and being present to defend or advocate one’s position is the only way to exercise that opportunity.

          In New York serving the other party, particularly in family law or divorce cases, is governed by the Civil Practice Rules, the Domestic Relations Law and the Family Court Act.  The rules for serving the other party differ slightly, depending on the type of case and the particular court the case is being heard in.  In all of the cases, the party must be served  “personally”, that is by hand delivering the documents to that person, unless the court permits other methods.  If the party being served chooses to let the documents fall to the ground or throws them away in front of the process server, they are considered served.

         In child support, child custody or visitation and paternity cases the other party, typically called the respondent in Family Court, must be served at least eight (8) days before the scheduled court appearance.  If there is an order of protection included in the papers however, the respondent must be served at least 24 hours before the scheduled court appearance.  In divorces, however, the other party, typically referred to as the defendant, must be served within 120 days of the filing of the initial divorce papers in Supreme Court.  There is an exception for “orders to show cause”, which is a request for emergency relief while the case is pending.  The judge will determine when and how the other party should be served in these instances.

          Any person, other than a party to the case,  over the age of 18 can serve the other party.  They can serve the other party on any day of the week except Sundays or holidays, unless there is an order of protection included.  Orders of protections can be served by the local police and sheriff (although the sheriff will also serve parties in other cases for a fee).  Process servers also serve parties for a fee and are typically used in cases where there is no one else to do it or the party is difficult to locate or cannot be located within the vicinity.

         Difficulty typically arises when the respondent or defendant is unavailable for service, either deliberately or by happenstance.  If this is the case and the court date approaches without service being “effected”, then the petitioner can either request more time (in Family Court) or ask for permission to use “substituted service”.  If the case is in Supreme Court, then a formal application, which is done by filing a motion, must be made to request  more time for service or for “substituted service”.  The courts will usually grant more time when proof of efforts made have been provided.  In addition, the respondent or defendant can “accept” service by appearing in court, acknowledging that he or she was not actually served (or was served improperly) and accepting the papers while in court.  The other party accepting service only serves to expedite the case, obviating the need to adjourn the case or for a hearing on the issue, so that the respondent or defendant can be served properly.  However, in cases where the other party is not so cooperative and refuses to accept service, avoids service or their whereabouts are unknown, a request for “substituted service” must be made.  There are instances, nonetheless, where there is a dispute as to whether service was done or done correctly, in which case either party can request a hearing on the issue.  This hearing places the burden on the petitioner or plaintiff,  to prove that he or she did in fact have someone properly serve the court papers. If a process server was used, then he or she will more than likely be called to testify about the circumstances of serving the documents. This only delays the case and although beneficial in some cases, it generally serves little purpose in getting to the substantive issues in the actual case. Substituted service, on the other hand,  is service by means other than personal service, e.g. by giving the papers to someone else at the respondent’s home or work, by mailing them, by posting them on the door of the party’s last known address or by placing an ad in the local newspaper (which is usually what is required in divorce actions ), either way the court must give permission and will give specific instructions as to which method is allowed.

         Once service is completed, the party serving the papers must complete the affidavit of service, must have it notarized and the petitioner must bring it to court as proof of service (in divorce actions it is submitted to the court with the final documents).  The affidavit of service merely states who was served, when  and where that party was served, gives a description of the person served and details what he or she was actually served with.  It also includes the name and address  of the person who served the papers and that person’s signature is notarized. 

         There is no avoiding this step in the court process.  Unless the other party is dead and the petitioner has proof of their death (with a death certificate), having information about the other party’s whereabouts before filing the petition is highly recommended.  Especially in cases where time is of the essence, for iexample, where the petitioner is filing a petition for sole custody so that he or she can get a passport for their child to travel, having some idea of the other party’s whereabouts is paramount.  Conversely, avoiding service is not an effective means to avoid facing a particular issue because if this is proven then the court may make allowances by permitting the petitioner to serve by means other than personal service.

          Feel free to contact my office for your family law case.