Serving Family Court Petitions in New York

May 26, 2009 on 11:31 pm | In New York State Family Court | 70 Comments

Service of process of Family Court summonses and petitions is more demanding than it seems. By law in New York, for instance, you must not affix a New York State Family Court summons. Furthermore in many cases you may be forced to attempt to get a responsible relative who is willing to accept process if Respondent is unavailable or plainly evading service. So altogether, the need to serve these court papers in person adds extra burden at serving child support petitions, child custody petitions, orders to show cause, orders of protection and paternity petitions.

When Respondents cannot be served, then the process server must issue an affidavit of attempted service (due dilligence affidavit) in order for the petitioner to ask the presiding judge to issue an order allowing substitute service:nail and mail. In the meantime, between the day you decide to fight for your child support and the day you actually get an evasive Respondent to appear in the court hearing a long, long time may pass. It’s the legal system’s fault, not the process server’s.

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  1. Hi, Congratulations to the site owner for this marvelous work you’ve done. It has lots of useful and interesting data.

    Comment by AmorelomWeese — June 5, 2009 #

  2. What if the summons server serves the wrong address and the wrong person? Guy came over my house, wife told him this is north ewar st not ewar str. The guy said is this so and so? wife: no. Guy goes to ewar st. the person tells guy this is for north ewar st.(which is wrong) guy comes back and tells my wife this is the right address.
    I called the law firm and told them. They told me to disregard.

    question How do i find out the company that serves summons? because the law firm told me we use 100′s of summons server and we wont know until the receipt comes back.
    If they dont want to tell me what could i do? How do I find out this company from the law firm.

    Comment by Vince — June 10, 2009 #

  3. To Vince:

    The best way to find out about the process server is to read the information in the court papers delivered to your home. Somewhere in those court papers you will find the court’s address, case number and plaintiff’s name.

    With that information you can go to the County Clerk and request to inspect the file regarding the case. In that file you will find, among other documents, the affidavit of service issued by the process server.

    The affidavit of service or service return lists the name of the process server and the circumstances encountered when serving process together with the address where the process server effected service.

    Comment by Administrator — June 10, 2009 #

  4. In NY who can serve the papers? I am assuming that the papers being served are for paternity. Can just anyone serve them? Do they have to be served to the party listed on the papers? What if I refuse to accept them? I am not a party to the case.

    Also what happens if the papers cannot be served? How many times do you have to try to serve them before they can mail them?

    Thanks alot for this wonderful site.

    Comment by Phil — July 11, 2009 #

  5. To Phil:

    In New York any suitable adult over the age of 18 years can serve court papers, but if that person chooses to do process serving for a living (Serving at least 5 documents per year), then he/she must get a license for process service from the City of New York.

    For New York State Family Court summonses and petitions certain strict rules apply. For example the process server is generally mandated to serve paternity petitions, child support petitions, orders of protection, child custody petitions and other court papers personally upon the named Respondent. Serving a relative or a friend of Respondent can work as long as Respondent does appear in court. If you serve a third party on behalf of Respondent but Respondent fails to appear in court, the judge will probably send you back to have Respondent served in person.

    Refusing to accept process (court papers) works generally against Respondent. If the process server sees you and confirms your identity through a simple question, you are technically served, notwithstanding the fact that you threw away the summons or that you said that you are unwilling to accept the summons.

    If papers cannot be served, the process server will issue a certificate of attempted service. This certificate will be used to ask a judge to issue an order allowing substitute service (Nail and mail).

    You must not mail papers unless expressly authorized by a Family Court judge or expressly allowed to do so as part of the procedure of serving a third party on behalf of Respondent.

    Comment by Administrator — July 12, 2009 #

  6. Thanks for the great reply.

    One more question, the papers were not served to the respondent personally but left in the front door of the house at 11pm last night. Court date is tomorrow at 2pm. This is not a valid service as there is not 8 days before the court date and it was not personally served to the respondent.

    What to do? Should the respondent go to court tomorrow?

    Comment by Phil — July 12, 2009 #

  7. I received by certified mail from my ex in Florida a summons from family court in NY (where I live) where he wants to lower my child support. I don’t believe this is legitimate service as it was done by certified instead of by the sheriff or a third party. Is this valid service? I wrote to the court and included a copy of the certified mail envelope.

    Comment by Ava — July 16, 2009 #

  8. July 18, 09
    To Phil:

    Even if you believe that you have been served improperly it is always a good idea to go to court in order to avoid a default judgment against you. Sometimes judges believe that the process server acted according to procedure even if he did not follow correct process serving rules;therefore if the judge believes that the service was proper , an “inquest” hearing may produce a ruling against you.

    You should always go to court to defend yourself ,with or without attorney.

    Comment by Administrator — July 19, 2009 #

  9. July 19, 09

    To Ava:

    Even if you believe it is “invalid service”, you must answer in order to protect your rights in Family Court. Sometimes process servers do not follow proper procedure when serving process but they report to court swearing in affidavits of service that they did follow proper process serving rules.
    The fact that you wrote to court by itself indicates to the judge that you did receive the summons. It is a catch 22. You write to court complaining that the service was improper but you may have fallen into your own trap by admitting that you did receive the court summons. Therefore, on the other side the judge may regard you as a person evading service and decide against you.

    Do not forget that in many situations service by mail is totally OK as long as the court orders it or allows it.

    Comment by Administrator — July 19, 2009 #

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  45. Here is the question, my husband has a son that lives in Brooklyn, we live in Florida. He has filled for visitations, but his ex wife has gone on a sudden and extended vacation. We think she found that he filled the papers. We have had the Kings County Sheriff try to serve her twice, in few days is his third case and we were still unable top serve her. Do you have any idea if the case can be dropped by the judge because we are unable to serve her? Or maybe what can happen if she cant be served for the third time?

    Comment by Dorothy — August 8, 2010 #

  46. 08/08/10
    To Dorothy:

    If you bring proof of attempted service upon Respondent it is very likely that the case will proceed. You must document all the attempts made and let the judge know that you have made reasonable efforts to serve Respondent.

    Additionally, there are many instances when the Family Court judge will issue an order allowing substituted service or nail and mail if diligent efforts have been made to serve Respondent in person. By ordering “nail and mail”, the judge will continue with your case after you have a process server affix the Court papers at Respondent’s home entrance door. The process server must also send the pleadings by regular mail.

    For more information on evasive defendants or difficult defendants, please visit: http://www.subpoenadelivery.com/

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  53. You will probably end up with a default judgment if you do not open the door for the process server to deliver the summons to you. If you get a default judgment probably one day your assets will be frozen (bank accounts, car title, etc). So it is in your best interest to accept the summons and answer to the Court before they only hear the credit card company’s story and not yours.

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  68. Hi, my mom is trying to get guardianship of her two grand children. Their mom is in jail and they’re other two parents are out of the US. Is it still possible to serve papers to these parents? As for the mom, is it possible to serve her via mail or do we need to still serve her in person.
    I appreciate your feedback

    Comment by Rafael — January 10, 2011 #

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