Served or Not Served?

[TwoBoys]

This Q is being asked on behalf of a friend of mine.

Child is 4 weeks old, parents of child not married to each other.
BM - married at time child was conceived, actually seperated from her H.  
BF - married at time child was conceived, was supposed to be seperated, but actually turned out NOT to be seperated.
Obviously, both parents were married, just not to each other.

When BM found out she was PG, informed the father, he stated he was reconciling with his W, and would not be involved.

BM had child, with no contact with the father, at his request.  Within 2 weeks of the birth of the child (who is now just over a month old), she had him served with a motion to establish paternity & child support.

During the process of having him served, it was learned that he seperated from the military a few months ago and moved back to his home state of tx.  BM lives in Florida.

She located him, and provided process server in TX with his parents address and the address of his mother in law where he was living.

Process server attempted service at his parents first (said it was closer to their office), BFs father answered, replied he did not live there and was in afghanistan.

Process server attempted service at Mother in Laws house, she stated he was not home, but him & his Wife did live at that residence and accepted service.

Proof of service has been filed with courthouse in FL where case is filed.

THEN - Just recently, a letter was faxed to the BMs attys office, and the courthouse from the wife of the BF.

Letter states :
this letter is to inform you that does not reside at

. , had delivered this summons improperly. we are currently seperated and i do not have an address for him. is not aware of this summons existence. please find other means of locating him and respectfully keep our son and myself from any further inconveniences.

The letter is recorded as part of the file now (case # was included at the heading of the letter).

That said... my questions are:
1.  She is worried the service wont count.  What are your thoughts on wether or not the service will be upheld in court?
2.  The Process Server is providing an affidavit, stating what the mother in law said and verifying htat proof was valid.  Will this help?
3.  Are there any other actions we could take to ensure that it gets upheld in court?

Thanks, the atty working this case is a friend of mine, but just opened his own firm, and is fairly young, and hasnt worked with a situation quite like this before (out of state father, avoiding service, etc).

Thank you,
TwoBoys...

[socrateaser]

>That said... my questions are:
>1.  She is worried the service wont count.  What are your
>thoughts on wether or not the service will be upheld in
>court?

Judgment call. Server was told that respondent lived at address and filed proof of service. Now someone else who arguably has better info, says not there and no knowledge of where respondent lives. If I were judge, I would probably find service effective, and then after garnishment begins with employer, obviously the respondent will have an opportunity to try to quash the order.

But, it could go the other way. If this were a civil case other than paternity/support, I'd say that the judge would reject the service. But, in family law, courts lean so heavily in favor of custodial parents, that they will pretty much tear up the Bill of Rights to get a support order in place.

>2.  The Process Server is providing an affidavit, stating what
>the mother in law said and verifying htat proof was valid.
>Will this help?

Since the respondent won't be in court, I'd say yes, although ordinarily an affidavit would be inadmissible hearsay -- but respondent won't be there to object, so it will be allowed.

>3.  Are there any other actions we could take to ensure that
>it gets upheld in court?

Nothing other than finding respondent and serving him personally.

[Giggles]

I would also suggest that she may want to file for the services of the Child Support Enforcement agency in her area.  The fee is minimal (usually about $25) and they have access to many different avenues that a normal attorney may not, such as the "New Hire Database".  It is possible for them to find him much easier than a private attorney and coud save her possibly thousands of dollars in attorney's fees.  Also, they would possibly date back to the time of filing and she would be entitled to any arrears that build up during the time they are trying to find him.

I made the mistake of going through a private attorney when my daughter was born.  He succesfully avoided service for 3 years!!!  Plus I didn't have the greatest of lawyers.  Thankfully, I was able to get an arrearage judgement dating back to her birth and I have since filed with CSE.