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Author Topic: who can accept served papers?  (Read 890 times)

thesmithfamily_5

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who can accept served papers?
« on: Jul 24, 2006, 02:40:17 PM »
My ex & I are currently in the middle of a custody dispute. The last I heard she was representing herself. It's nearing the end of our summer visitation and she just emailed me to ask when "they" were coming back. I'm getting suspicious that there's more to her question than face value, such as she wants to have me served when I take them back. However, I have to work so I'm not going to be able to take them back, my wife will.

My question is:

1. If she hired an attorney and is countersuing for whatever reason or is trying to serve me with production or interrogitories, etc. would they be able to serve my wife in my place? How does that work?

Thanks for the help!


socrateaser

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RE: who can accept served papers?
« Reply #1 on: Jul 24, 2006, 04:13:33 PM »
>My question is:
>
>1. If she hired an attorney and is countersuing for whatever
>reason or is trying to serve me with production or
>interrogitories, etc. would they be able to serve my wife in
>my place? How does that work?

Countersuit has no application in a custody action, so this question is a non sequitur.

If there is already a complaint/petition or show cause order for custody filed and personally served on either of you, meaning that there is a current legal action pending final judgment/order, then service of intermediate legal process, like interrogatories, request for production of documents, or deposition notice, can be effected by first class mail to the address that you have provided the court as contact info for the action.

Such process can also be effected by personally serving it (handing it to or dropping it in front of) on any adult who lives in your home.

For a complaint/petition/show cause order, you must be personally served, however service on an adult residing in the home is also permitted.

There is only one good reason to avoid service in a custody action, i.e., you are attempting to avoid an ex parte show cause motion for a restraining order for domestic abuse, and you are in the process of filing your own similar domestic abuse restraining order. The reason why you might want to avoid service here is because if both of you had obtained ex parte orders to have the other parent forceably removed from the family residence, or restrained from exercising custody, until a hearing could be held, then by serving the other parent first and your not being served, you would win, and that parent would be removed, so that when you were served, it would be absurd to remove you.

If you believe that there is ANY possibility that your spouse intends to try to have you removed from the residence, then I wouldn't come anywhere near her and I would be in court trying to get a similar order against her, on grounds that you fear her abusing you or the children physically or emotionally. And, then I'd have it served on your spouse immediately, so as to get her out of the house.

This particular type of service must be made personally on the person restrained. No one else can accept service.

 

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