Published on:

Petitioner Claims Invalid Service of Summons


A New York Family Lawyer said this is a proceeding for support pursuant to Article 4 of the Family Court Act. The clerk of the court mailed a summons to the respondent, directing him to appear for a hearing. No attempt at personal or substituted service was made prior to the mailing of the summons.

A New York Custody Lawyer said that the respondent has appeared specially and moved, pursuant to Section 3211(a) (8) of the Civil Practice Law and Rules, to dismiss the petition on the ground that service by mail in the first instance does not comply with the requirements of Section 427 of the Family Court

A Queens Child Custody Lawyer said Section 427 provides as follows: ‘(a) Service of a summons and petition shall be made by delivery of a true copy thereof to the person summoned at least three days before the time stated therein for appearance. If so requested by the respondent or by a parent or other person legally responsible for his care, the court shall not proceed with the hearing or proceeding earlier than seven days after such service.

(b) If after reasonable effort, personal service is not made, the court may at any stage in the proceedings make an order providing for substituted service in the manner provided for substituted service in civil process in courts of record.

(c) In a proper case, service of a summons and petition under this section may be effected by mail.

A Queens Family Lawyer said the reading of Section 427 clearly indicates that service is to be made personally, and only upon failure to effect the same is substituted service ‘. . . in the manner provided for substituted service in civil process in courts of record’ to be allowed.

A Queens Child Custody Lawyer said Section 308 of the Civil Practice Law and Rules is explicitly incorporated in the Family Court Act. A close reading of Section 308 demonstrates that it is, in fact, similar to Section 427 of the Family Court Act. Section 308(5) of the Civil Practice Law and Rules and Section 427(c) of the Family Court Act are also similar, and service pursuant thereto may be made only upon a showing that personal and substituted service is impracticable, requiring another method of service to be ordered at the court’s discretion.

This is the respondent’s contention: that only upon a showing that service of process pursuant to Section 427(a) and (b) cannot be effected, may the Family Court invoke its discretion to allow petitioner to avail herself of the provisions of Section 427(c). The corporation counsel, appearing for the petitioner at the request of the court pursuant to Section 254 of the Family Court Act, argues that since the respondent received notice of the proceeding the manner in which that notice was given is irrelevant.

There is no statutory authority for sending a summons by mail in the first instance. Section 427 clearly implies that service by mail ‘in a proper case’ applies to situations where the petitioner has failed at personal and substituted service. Thus, all mailed summonses are subject to motions to set aside except when properly sent under Section 427(c).

There are countless adjournments for non-appearance of respondents. In fact, one out of eight cases on the Kings County Family Court calendar is adjourned without meaningful action as a result of the respondent’s absence.

When the mailed summons is not returned, and when a respondent fails to appear, some judges will issue a warrant for his arrest, without even the formality of an affidavit of service. Respondents who have never received notice of a hearing are actually arrested and brought before the court. This occurs only in New York City. In most of the counties outside the City, after a respondent fails to appear, the summons is given to the sheriff to effect personal service.

Family Courts, at least in the Metropolitan area, invoke this mode of service (mail). It is imperative because of the volume of cases handled by the court and in most instances, the respondents appear and submit to the jurisdiction of the court.’

It is axiomatic that a large volume of cases cannot excuse the circumvention of the law. In 1973 there were approximately 7,000 adult cases on the Family Court calendar in Kings County. In almost every case process was served by regular mail.

It is clear that the Family Court Act was drafted so that the new Family Court, now a court of record, would be more formal and predictable and generally in accord with the practice of other courts of record of the State of New York.

Section 167 of the Family Court Act provides for a conclusive presumption of proper service when a respondent personally appears before the court ‘unless such person or someone in his behalf shall on such return day make objection to the manner of service’. The respondent in the instant case, through his attorney, is making objection to the manner of service. However, the overwhelming majority of respondents served by mail appear personally, believing the summons to be legal, and unknowingly waive jurisdictional objections.

Thus, unless and until the Legislature sees fit to amend the Family Court Act, all service by mail in the first instance would seem to be improper. It is hoped that the Legislature will consolidate the various sections of the Family Court Act providing for varied service in different types of actions into a simple, specific unambiguous section. Perhaps the statutes could be amended to provide for service by certified or registered mail. Until this is done, and absent guidelines pursuant to which the court may order service by mail pursuant to Section 427(c), a summons in this court should be served personally.

Based on all of the foregoing, the court finds that in personam jurisdiction of the respondent has not been obtained. Service of the summons is set aside without prejudice.

There must be a valid service of summon in cases like family actions, in order for a court to have jurisdiction over the case and the person of the parties. If you are seeking to obtain custody of your child, you can avail the services of Kings County Child Custody lawyers here in Stephen Bilkis and Associates. Our lawyers will help you prove before the Courts that you are the right person to whom custody must be awarded. For other concerns, don’t hesitate to consult our Kings County Family lawyers. We will be glad to hear your predicaments and help you solve it.

Contact Information