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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 27692
Experience:  Attorney with experience in family law.
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In a case where a grandparent is petitioning the court with

Customer Question

In a case where a grandparent is petitioning the court with outlandish allegations, what recourse do to two fit parents have? The term fit to the court means no founded cases of abuse or neglect. We were never properly served the court papers as they were not on file at the time they were served. Our attorney did not assert this on the second court appearance date. We have fired him a d going pro se. How can we have this case dismissed based upon it being defective in its context as well as as being improperly served
Submitted: 1 year ago.
Category: Family Law
Expert:  retireddebra replied 1 year ago.

Where do you live?

Customer: replied 1 year ago.
New York
Customer: replied 1 year ago.
Hello
Customer: replied 1 year ago.
Anyone there?
Expert:  retireddebra replied 1 year ago.

This is on the Canada law list.

I have asked the site to move this to the correct list.

Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm very sorry to hear that this is happening.

Once you have already filed an appearance in a case, it is unfortunately too late to move to dismiss on the basis of improper service. That defense must be stated in the first response to the Complaint. N.Y. Civ. Practice Laws and Rules, Section 3211. In addition, when a case is dismissed due to improper service, it is dismissed without prejudice. That means it can be immediately refiled, the defendant can be served properly, and the case will proceed. That's because there's a preference in the law for deciding cases on their merits and not on technicalities. That may be why your lawyer did not seek dismissal - it could have delayed things a bit, but it wouldn't make the case go away forever.

The law unfortunately does not allow a case to be dismissed based on the grounds that the allegations listed in the Complaint are untrue. This is because due process guarantees that everyone will receive their day in court. The judge isn't allowed to take your word for it that the grandparents are lying any more than the grandparents could ask him to automatically assume their allegations are correct and give them custody. Any time there is a dispute regarding the facts of the case, it has to go to trial. That's what a trial is for. A party cannot have a case with disputed facts dismissed just because the facts are groundless. You may be thinking of a motion to dismiss for failure to state a claim, but what that means is a judge would have to read a Complaint, assume ALL the facts in it were true, and still find that it doesn't allege any violation of the law. That's very different than the scenario you're in.

With that said, if you have evidence that the grandparents are intentionally filing baseless claims in order to take your children from you, knowing the claims have no legal merit, you may be able to file a civil cause of action against them for abuse of process. Damages can include the cost of paying an attorney to represent you to defend the case, so that's something to keep in mind when deciding whether to proceed pro se. You're also able to seek reimbursement for any out-of-pocket expenses, mileage traveling to and from court to defend the original allegations, and punitive damages. The custody case must be resolved in your favor before you can file a civil lawsuit against the grandparents for damages.

If you have any questions or concerns about my response, please reply WITHOUT RATING. It's important that you are 100% satisfied with my courtesy and professionalism. Otherwise, please rate my service positively so I am paid for the time I spend answering questions. If you are on a mobile device, you may need to scroll to the right. There is no charge for follow-up questions. Thank you.

Customer: replied 1 year ago.
From what I understand in NY the petition must meet the criteria to petition the court and in NY there are on,y two grounds to petition the court one is the parents are deceased and the other is based upon extraordinary circumstances of which there are none. How can we have it dismissed upon the merit of as much. You cannot just petition parents in NY and out them through a process that violates their parental rights unless there are extraordinary circumstances like, you lived with the child or acted as a parent etc.
Expert:  Lucy, Esq. replied 1 year ago.

If the petition alleges extraordinary circumstances, even if they're lying, then you have to go a trial. You said that they put "outlandish allegations" in the Complaint, which made it sound like they're making statements that could support what they're asking for (if they were true).

Expert:  Lucy, Esq. replied 1 year ago.

If it's impossible that any reasonable person reading the Complaint would think they have a right to the relief they're asking for, even assuming all allegations are true, then you can file a Motion to Dismiss under N.Y. Civ. Practice Laws and Rules, Section 3211(7).

Expert:  Lucy, Esq. replied 1 year ago.

That's a fact specific motion, so it's something that you'd write up yourself, explaining all the reasons the Complaint should be dismissed. If you'd prefer not to hire a lawyer to write the motion for you, it could help to visit a law library where you can look at examples.

Customer: replied 1 year ago.
IAs far as stating in the first complaint. We were served the papers in court because they needed to be ammended to include my husband. The judge never allowed us time to respond so that was not something we could assert as a first response. We went straight from being served in court to the judge ordering an attorney for child without the consideration that we did not have time to respond. After our last court appearance our attorney who we had to fire for not being willing to perform his job, did not make any assertions and forensics were assigned. As fit parents we have rights Troxel V Granville. How can we assert our rights in this matter? The grandmother had not seen the child in three years and our decision was made three years ago. She is challenging our decision without grounds to petition the court
Expert:  Lucy, Esq. replied 1 year ago.

You can assert your rights by filing a Motion to Dismiss under Rule 3211. The statute is linked above.

Customer: replied 1 year ago.
We did file a motion to dismiss which the judge said she could not make a decision on because we did not allow the attorney for child to see our daughter. However this was because it violated our rights to have the judge leave the decision making to the child when we as parents made a decision we believe is in her best interest. Can the judge force us to see the attorney for child. Where as parents we have first right? What recourse do we have to address it? Also my husband is names as the subject of the petition and is a respondent. All of the allegations made are about my husband and I separating which isn't true. The other allegations have nothing to do with my husband or having their basis in a legitimate complaint.
Customer: replied 1 year ago.
The complaint in no way establishes a relationship with my daughter and both my husband and I agree. In NY the judge cannot just tell us what to do when we have not been proven unfit. How do we deal with that aspect or can she force us against our rights and inject her action into a nuclear family unit.
Expert:  Lucy, Esq. replied 1 year ago.

The judge unfortunately can require that you allow an attorney to see your child if he has read the allegations in the Complaint and think they WOULD support a cause of action if they turned out to be true. Remember, he can't decide that the statements in the Complaint are false until you have a trial. Motions are not about determining the facts of the case. He CAN take steps to DETERMINE whether you're unfit after hearing the allegations - that's his job.

Your husband should be named if he is the father of the children in question. If he's not, he can move to dismiss on his own, based on the fact that is not a parent and therefore a cause of action against him is inappropriate.

Expert:  Lucy, Esq. replied 1 year ago.

The way our legal system is set up, yes, the grandparent is allowed to do this. But as I explained earlier, if you can prove that she is maliciously trying to take your children despite having no legal basis for doing so, you can sue her for damages AFTER you get the case resolved in your favor. You still have to deal with the case, even though it's frustrating.

Customer: replied 1 year ago.
I don't understand the last sentence
Customer: replied 1 year ago.
She has my husband as the subject stating that we separated and that is why she petitioned the court. Because in Ny you cannot petition the court against two fit parents. They won't accept the petition. They turned a petition against me that was filed withe court into an ammended petition against both of us. And never filed the petition until two weeks after it was served. It was not on file with the court a t the time of service. So the court never had a chance to review the petition it was accepted as an ammendment. I know you say we would have had to assert it before but we just found out. My husband is not named as a respondent in the order for the attorney for child either. Does he still have to comply? All of the orders have my name o. It.
Expert:  Lucy, Esq. replied 1 year ago.

By the last sentence I mean, you can't just go to court and tell a judge "This case should never have been filed" if the judge has already declined to dismiss it. You have to proceed with the litigation and get a judgement in your favor before you can take separate action against the other party.

You keep saying they can't petition against you, but they DID. "Can" means "is possible." This is clearly possible, because it happened. So telling me that the court can't and won't accept a petition that has already been accepted is not helpful. It's up to the judge to decide whether you're a fit parent. He can't start with the presumption that you are fit unless the grandparents said so in their petition.

Are you sure they're not seeking VISITATION rather than a declaration that you're unfit parents?

Does the Complaint raise any allegations of unfitness other than the (untrue) fact that you've separated?

Expert:  Lucy, Esq. replied 1 year ago.

Whether your husband is named in the order for an attorney or not, you have to comply. If you're married and living together and not planning to separate, I'm not sure how you would argue that the lack of your husband's name on that order means you don't need to get an attorney. You both have equal access to your children and equal ability to provide for the attorney to speak to your child.

Expert:  Lucy, Esq. replied 1 year ago.

If you have not yet filed a response to the Amended Petition, you can file a Motion to Dismiss and state all the reasons that the case should not proceed. You're allowed to use Lack of Standing as a basis for seeking to have the case dismissed. The motion can be considered your first response to the Amended Complaint.

If you're already responded to the Amended Complaint, then you need a local attorney who can read over all of the documents and provide assistance from there. This site is designed for relatively simple questions and answers. It's not intended for in-depth review of documents or lengthy conversations of the merits of your case. Since your case is not the normal custody case, it would probably help greatly to have a lawyer who can write the motion for you.

Remember: If the grandparents are illegally filing a motion that has no basis whatsoever in the law, then you can sue them for the money you paid your lawyer to win the case.

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