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May 09, 2012, 01:16:00 PM
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What follows is from a message on the DivorceNet bulletin boards, written by a poster named "GeorgeLaw". George makes a number of good observations and suggestions that are worth serious consideration. We reproduce his comments here, slightly edited to preserve context and clarity.
Allow me to expand on the original commentary, given the discussion that has been taken place recently concerning the use of certified mail.
Two facts must be considered:
The purpose of Certified Mail is to provide an indisputable record that an article was actually delivered, or attempted to be delivered to a recipient. Due to the discretionary powers of the family court, the general rules concerning Certified Mail can be waived or mitigated.
Consider a scenario where delivery of insurance documents (which are presumed to be for the benefit of the child or children) is at the center of the issue. The intended recipient fails to accept the Certified Mail for whatever reason. The reason for the failure to accept delivery can become secondary when the court reviews the entire situation, and the burden can be placed up the individual that has mailed the documents.
Many people in the family courts use Certified Mail as a means of harrassment of the other party. They know that sending everything Certified Mail places a burden on the other party, and ultimately, this reliance on Certified Mail becomes a new game in the process.
In this particular instance, the insurance documents, and the delivery thereof to the custodial parent is necessary on two different fronts. The first front is that the insurance documents are for the benefit of the child or children. Here we also see a pattern where the custodial parent is not taking medical issues and concerns seriously. The second front is that the non-custodial parent could be held responsible for one-half, or possibly even the full medical bill should the custodial parent, upon discovering that the previous insurance is invalid, takes the child to a provide that may not be approved by the new insurance provider. Here it could be financially beneficial for the non-custodial parent to ensure that the custodial parent receives the new insurance documentation.
When the non-custodial parent is attempting to create a record, which is of course permissible, but is attempting to create a record at the expense of the well being of the child or children, those efforts can be viewed to be suspect. The question that remains to be answered is whether or not the non-custodial parent made every 'reasonable effort' to ensure that the insurance documentation was delivered to the custodial parent.
When documents are mailed by Certified Mail as well as a copy being mailed via regular first class mail, the sender has the reasonable expectation that the documents were received even though delivery of the Certified Mail was not completed. When documents are mailed only by Certified Mail, and that delivery is not completed, then it becomes obvious that the intended recipient did not receive appropriate notice of the contents of the mailing.
Certified Mail, and the acceptance thereof, is nothing more than a courtesy that is being extended to the sender by the recipient. There is no legal requirement that anyone accept any Certified Mail. The documentation utilized by the Postal Service to notify an individual of Certified Mail is vague, in that such documentation does not identify the sender of the item. Instead, the only identifying information that is provided, in most cases, is the number of the Certified Mail and the zip code that the mailing originated from.
In the legal community, when Certified Mail is utilized to notify a party of time sensitive matters and issues, a copy of that notification is also sent via first class mail. This ensures that there is a 'reasonable probability' that the intended recipient was notified of whatever event or requirement.
The compelling reason to send documents via Certified Mail is to create that record. There is a compelling reason to create a record with the delivery of insurance papers in this instance. However, the sender of those documents also has the added burden of ensuring that the recipient does receive those papers, by virtue of the court order. Therefore, if the Certified Mail is not accepted by the recipient, the burden placed upon the non-custodial parent to 'notify the custodial parent of any changes of insurance coverage' has not been fully met.
I see a recurring theme, where the non-custodial parent uses Certified Mail for all contact with the custodial parent for the sole and exclusive purpose of attempting to create a record to show that the custodial parent is being uncooperative. The non-custodial parent who does this proceeds on the assumption that this record; the record of the custodial parent failing to accept Certified Mail, will benefit him or her in further legal action against the custodial parent. That record is suspect in many instances.
This record may ultimately only show that the custodial parent simply does not accept any Certified Mail. This, in and of itself, is not indicative of anything that could be considered to have much weight in attempting to prove anything, since it is clearly within the right of the intended recipient not to accept any Certified Mail.
While the record may be suspect in that type of situation, the record will have more meaning if the sender of documents can show that documents have been sent via both Certified Mail and first class postage. Should the recipient of those documents not act accordingly, then the burden is upon them for not acting.
It is within the discretion of the Court to determine that individuals who rely on Certified Mail, and the subsequent failure of the recipient to accept such mail, to be acting as 'children'. Therefore, it is entirely possible that neither party will prevail, or, the intended recipient will prevail due to the 'unreasonable expectations' being placed upon the intended recipient by the sender of the documents.
Someone must be the 'adult' in these matters. When attempting to deliver items such as insurance documents, and insurance cards, the burden is upon the sender to ensure that those documents are in fact received by the recipient. The recipient can send copies of the cards via first class mail, with the originals being sent via Certified Mail to ensure that the cards are actually received. If this is done, then the intended recipient clearly has the burden to demonstrate why they did not accept the Certified Mail.
In instances where the custodial parent has moved, and not notified the non-custodial parent of the new address, the non-custodial parent does have a method to discover the new address. According to Postal Regulations, the sender need only place the words 'Forwarding and Address Correction Requested' beneath their return address on first class mail. The letter will be delivered to the addressee, but the sender will also receive notification from the Post Office of the new address. I believe that the sender will have to pay something like 50 cents for this service.
The point that I am attempting to make here is that attempts to make a case based upon the refusal of the custodial parent to accept Certified Mail has many complications. Sole and exclusive use of Certified Mail to communicate with the other party is not necessarily appropriate. An individual who will send original documents by Certified Mail, and copies of those documents by First Class Mail at the same time will be looked at much more favorably by the Courts than an individual who relies exclusively on Certified Mail. This is especially true with insurance documents because those documents directly affect the well being of the covered individual.
In conclusion, a lot of anguish, problems and uncertainty can be avoided if all angles are covered. Your goal should be to make yourself look good. By sending documents Certified Mail as well as by First Class mail, you have clearly met the burdens that have been placed on you by the court. A statement on the letter that accompanies the documents above the date which states on the first full line: Certified Mail - Return Receipt Requested - Certified Mail Number ________ and then on the second line the statement: Also Sent Via First Class Mail will provide you with all the protections that you need.
Yes, you can split hairs with me on this topic. You can take 'strict interpretations' of the law and apply it in these types of situations. However, in family law, it is important to remember that such 'hair splitting', especially if it is done by someone who is proceeding pro-se, can and will backfire on the litigant. It may, or may not be fair, but judges as a rule, do not like to deal with people who are attempting to 'split hairs'. They look more favorably on a person who, for lack of a better word, acts like an adult.
George
Allow me to expand on the original commentary, given the discussion that has been taken place recently concerning the use of certified mail.
Two facts must be considered:
- Certified Mail can be considered to be a form of service for the singular fact that it provides proof of service through the signed receipt.
- Family courts may exercise a substantial amount of discretion in these matters.
The purpose of Certified Mail is to provide an indisputable record that an article was actually delivered, or attempted to be delivered to a recipient. Due to the discretionary powers of the family court, the general rules concerning Certified Mail can be waived or mitigated.
Consider a scenario where delivery of insurance documents (which are presumed to be for the benefit of the child or children) is at the center of the issue. The intended recipient fails to accept the Certified Mail for whatever reason. The reason for the failure to accept delivery can become secondary when the court reviews the entire situation, and the burden can be placed up the individual that has mailed the documents.
Many people in the family courts use Certified Mail as a means of harrassment of the other party. They know that sending everything Certified Mail places a burden on the other party, and ultimately, this reliance on Certified Mail becomes a new game in the process.
In this particular instance, the insurance documents, and the delivery thereof to the custodial parent is necessary on two different fronts. The first front is that the insurance documents are for the benefit of the child or children. Here we also see a pattern where the custodial parent is not taking medical issues and concerns seriously. The second front is that the non-custodial parent could be held responsible for one-half, or possibly even the full medical bill should the custodial parent, upon discovering that the previous insurance is invalid, takes the child to a provide that may not be approved by the new insurance provider. Here it could be financially beneficial for the non-custodial parent to ensure that the custodial parent receives the new insurance documentation.
When the non-custodial parent is attempting to create a record, which is of course permissible, but is attempting to create a record at the expense of the well being of the child or children, those efforts can be viewed to be suspect. The question that remains to be answered is whether or not the non-custodial parent made every 'reasonable effort' to ensure that the insurance documentation was delivered to the custodial parent.
When documents are mailed by Certified Mail as well as a copy being mailed via regular first class mail, the sender has the reasonable expectation that the documents were received even though delivery of the Certified Mail was not completed. When documents are mailed only by Certified Mail, and that delivery is not completed, then it becomes obvious that the intended recipient did not receive appropriate notice of the contents of the mailing.
Certified Mail, and the acceptance thereof, is nothing more than a courtesy that is being extended to the sender by the recipient. There is no legal requirement that anyone accept any Certified Mail. The documentation utilized by the Postal Service to notify an individual of Certified Mail is vague, in that such documentation does not identify the sender of the item. Instead, the only identifying information that is provided, in most cases, is the number of the Certified Mail and the zip code that the mailing originated from.
In the legal community, when Certified Mail is utilized to notify a party of time sensitive matters and issues, a copy of that notification is also sent via first class mail. This ensures that there is a 'reasonable probability' that the intended recipient was notified of whatever event or requirement.
The compelling reason to send documents via Certified Mail is to create that record. There is a compelling reason to create a record with the delivery of insurance papers in this instance. However, the sender of those documents also has the added burden of ensuring that the recipient does receive those papers, by virtue of the court order. Therefore, if the Certified Mail is not accepted by the recipient, the burden placed upon the non-custodial parent to 'notify the custodial parent of any changes of insurance coverage' has not been fully met.
I see a recurring theme, where the non-custodial parent uses Certified Mail for all contact with the custodial parent for the sole and exclusive purpose of attempting to create a record to show that the custodial parent is being uncooperative. The non-custodial parent who does this proceeds on the assumption that this record; the record of the custodial parent failing to accept Certified Mail, will benefit him or her in further legal action against the custodial parent. That record is suspect in many instances.
This record may ultimately only show that the custodial parent simply does not accept any Certified Mail. This, in and of itself, is not indicative of anything that could be considered to have much weight in attempting to prove anything, since it is clearly within the right of the intended recipient not to accept any Certified Mail.
While the record may be suspect in that type of situation, the record will have more meaning if the sender of documents can show that documents have been sent via both Certified Mail and first class postage. Should the recipient of those documents not act accordingly, then the burden is upon them for not acting.
It is within the discretion of the Court to determine that individuals who rely on Certified Mail, and the subsequent failure of the recipient to accept such mail, to be acting as 'children'. Therefore, it is entirely possible that neither party will prevail, or, the intended recipient will prevail due to the 'unreasonable expectations' being placed upon the intended recipient by the sender of the documents.
Someone must be the 'adult' in these matters. When attempting to deliver items such as insurance documents, and insurance cards, the burden is upon the sender to ensure that those documents are in fact received by the recipient. The recipient can send copies of the cards via first class mail, with the originals being sent via Certified Mail to ensure that the cards are actually received. If this is done, then the intended recipient clearly has the burden to demonstrate why they did not accept the Certified Mail.
In instances where the custodial parent has moved, and not notified the non-custodial parent of the new address, the non-custodial parent does have a method to discover the new address. According to Postal Regulations, the sender need only place the words 'Forwarding and Address Correction Requested' beneath their return address on first class mail. The letter will be delivered to the addressee, but the sender will also receive notification from the Post Office of the new address. I believe that the sender will have to pay something like 50 cents for this service.
The point that I am attempting to make here is that attempts to make a case based upon the refusal of the custodial parent to accept Certified Mail has many complications. Sole and exclusive use of Certified Mail to communicate with the other party is not necessarily appropriate. An individual who will send original documents by Certified Mail, and copies of those documents by First Class Mail at the same time will be looked at much more favorably by the Courts than an individual who relies exclusively on Certified Mail. This is especially true with insurance documents because those documents directly affect the well being of the covered individual.
In conclusion, a lot of anguish, problems and uncertainty can be avoided if all angles are covered. Your goal should be to make yourself look good. By sending documents Certified Mail as well as by First Class mail, you have clearly met the burdens that have been placed on you by the court. A statement on the letter that accompanies the documents above the date which states on the first full line: Certified Mail - Return Receipt Requested - Certified Mail Number ________ and then on the second line the statement: Also Sent Via First Class Mail will provide you with all the protections that you need.
Yes, you can split hairs with me on this topic. You can take 'strict interpretations' of the law and apply it in these types of situations. However, in family law, it is important to remember that such 'hair splitting', especially if it is done by someone who is proceeding pro-se, can and will backfire on the litigant. It may, or may not be fair, but judges as a rule, do not like to deal with people who are attempting to 'split hairs'. They look more favorably on a person who, for lack of a better word, acts like an adult.
George