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Legalease
Legalease, Lawyer
Category: Family Law
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Experience:  13 years experience, divorce & custody issues, protective orders, child abuse issues
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I received a Petition for Child Support (first hearing) in

Resolved Question:

I received a Petition for Child Support (first hearing) in the U.S. mail from the Monroe County Family Court (Rochester, NY). It is my understanding that this petition is an Order to Show Course (OSC) action requiring two (2) original affidavits of service from the server.

If that is the case - then I have NOT been properly served. Correct?

All my research shows that courts have repeatedly stated that service requirements are to be strictly followed, even if the Respondent receives actual and prompt notice of the action as in this case where I received a standard U.S. Mail delivery (no "Personal and Confidential" markings either). See, e.g., Macchia v. Russo, 67 N.Y.2d 592, 595 (1986) (holding that “[n]otice received by means other than those authorized by statute does not bring a Respondent within the jurisdiction of the court”); Property Clerk v. Mason, 145 Misc.2d 1059, 1062 (Sup. Ct. N.Y. Co. 1989); (see also Def.’s Mem. Of Law in Support of MTD at 6).

This being said, can I file a Motion to Dismiss for Improper Service with the Support Magistrate BEFORE the hearing, or do I have to wait until the actual hearing and give the Support Magistrate the Motion to Dismiss for Improper Service? How does it get to a Traverse Hearing?

Really....first question I need answered is HOW can the Family Court of Monroe County, NY simply mail the petition without properly serving me? Is this the new "normal" protocol? The stamped date on the petition vs. my receiving the petition in the mail is only 2 weeks. I KNOW nobody attempted to come to the house to deliver it to my person.

Was thinking of going In Propria Persona...but am getting second thoughts.
Submitted: 1 year ago.
Category: Family Law
Expert:  Fran-mod replied 1 year ago.
Hi, I'm a moderator for this topic. I've been working hard to find a professional to assist you right away, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you. Thank you!
Customer: replied 1 year ago.

Yes, I can certainly wait. Maybe if the question was simpler and focused on a specific issue - such as the process of filing a motion to dismiss for improper service for a child support case?


 


In any event, I will wait a few more days. Thanks Fran!


 

Expert:  Fran-mod replied 1 year ago.
Thank you for your patience, Thomas. We will continue the search for a Professional for you.
Expert:  Wendy-Mod replied 1 year ago.

Thank you for your patience, your business is very important to us, we are waiting on the Professional with the right expertise to come online. Feel free to let us know if you would like us to continue searching for a Professional or if you would like us to close your question.

We appreciate your understanding!

Wendy
Customer: replied 1 year ago.
Relist: I still need help.
Additional clarification:

What is the proper way for a Respondent to be Served court papers for Child Support (1st Hearing)?

If Respondent has NOT been properly served, where and how can he submit a Motion to Dismiss for Improper Service?

Is a Motion to Dismiss submitted BEFORE the hearing date?

Is a Motion to Dismiss submitted AT the hearing date before the Support Magistrate?

And how does the Motion to Dismiss move to a Traverse Hearing?
Expert:  Wendy-Mod replied 1 year ago.
Thank you for the additional information and your patience while we continue to search for a Professional to help you.

Regards,
Wendy
Customer: replied 1 year ago.

Wendy,


 


This is a pretty straightforward and common request. I could find all the information on the Internet - but would like to validate with a legal expert. Why do you think nobody is picking this request up?


 


Thanks,


 


Tom

Expert:  Legalease replied 1 year ago.

Hello Tom -

-

I apologize for the delay in answering you -- this is the first time I have seen this question and it was forwarded by the moderators for my review. I have a lot of experience in these matters and can I ask you the following questions:

-

Is the Plaintiff in the case the NY Child Support Enforcement Department or is it the mother of the child acting herself?

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Is the child yours -- I hate to ask but I am wondering if you are mounting any paternity challenge?

-

Have you called the clerk's office to ask them what the normal method of service is in these cases and if the plaintiff received any special permission to use the US Mail for service (rather than to serve you by Sheriff or constable?)

-

MARY

Customer: replied 1 year ago.

Mary,


 


Mother of the child acting herself. Yes daughter is ours through marriage. Haven't thought of calling the clerk's office. But don't you think permission notwithstanding, I am entitled to being properly served by law? But an interesting thought. I just retained an attorney and he will tell me more.


 


Thanks, Tom

Expert:  Legalease replied 1 year ago.

Hello again Tom -

-

There is a process that a plaintiff can use to ask the court for permission to serve the paperwork through US mail and if the court has permitted her to do that, then your challenge to the service of process will be tossed out immediately. Now, if you are going to challenge the service of process in the case you would file a Motion to Dismiss for improper service as soon as you can after receiving the service by writing up the motion and filing it with the court and then having it served on her using a Sheriff or constable.

-

You state that you have hired an attorney and I always recommend doing so if a person can afford to do so. However, you must now be very careful to pick your battles appropriately because of the cost of the attorney -- the attorney will charge you by the hour and there are some attorneys who are conscientious and will be careful with your time and money and there are other attorneys who will assume that you have the money to pay them and will go along with everything that you want to do just so the attorney can bulk up that final legal bill on you. Please think carefully whether or not you want to challenge the method of service of process because once the case is dismissed due to improper service, she will simply walk to the clerk's office and re-file the case and this time she will have you served by a SHeriff or constable so that the case will move forward. The court will not dismiss her case forever or forbid her from bringing another case because it is a child support case and the courts and the state are very interested in seeing that support is paid for children of separated parents and so the courts will grant a lot of leeway in these matters. So, I bring this up and caution you on challenging the service at this point only because she will immediately re-file the case and the only thing you will gain from challenging the service is a large legal bill for an action that is not going to gain you much. (Just FYI, as attorneys, we often agree between the attorneys to accept service on behalf of our clients so that such issues do not muddy up the actual heart of a case, because it is very rare that a challenge to service of process will give any tactical advantage to either side and at the same time the client is running up his legal bill and most likely annoying the court in the process). So, if it were a simple matter of wanting to annoy her at this point then if you were handling the case yourself and you are completing and filing the motions, then other than the fact that you may annoy the judge, it is your choice whether or not to make the challenge so long as you know that she will be able to immediately re-file the case. Now that you have an attorney involved, I can tell you that it will probably cost you $1500 to $2000 in legal fees for the attorney to write up the paperwork and to make the court appearance to challenge the service and in my view it is simply not worth that cost when your ex can re-file the case immediately and the child support award dates back to the birth of the child or the last date you were living together so there is no advantage to delaying it from a tactical standpoint. Again, the ultimate decision is yours but if you were my direct client I would advise against making the challenge and save such motions and challenges for future issues that may arise and may need or deserve such a challenge.

-

Please let me know if you have any additional questions. If not, can you please press the 3rd, 4th or 5th smile face below so I will be paid for my time. I am paid NOTHING unless you press the 3rd, 4th or 5th smile face below - and doing so will not cost you any additional money or affect any trial period you may be on with Just Answer -- it simply acts as a trigger to Just Answer to pay me for my time. THANK YOU !

-

MARY

 

Legalease, Lawyer
Category: Family Law
Satisfied Customers: 14615
Experience: 13 years experience, divorce & custody issues, protective orders, child abuse issues
Legalease and 4 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

I think I sent it to the wrong place in the form of another question. Just wanted to thank you again Mary for a great perspective and to remove the cobwebs in my head. Have a GREAT day! Tom

Expert:  Legalease replied 1 year ago.

Thanks Tom -

-

Just FYI, you might receive a survey from Just Answer regarding this experience, and leaving the fact that it took a while to find a lawyer to answer the question (which is a site issue), I would appreciate it if you would rate me and my answer highly.

-

Best of luck and you know where I am if you have further questions.

-

MARY

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