To commence any action the Petitioner, or person who is pursuing the action, must have the other party “served” with a copy of the Complaint. This is a requirement in any type of case where the other party is an individual or entity. Having someone served in a divorce or child custody case can be quite a challenge and considers several things. I want to address some of those things here to help facilitate the process in family law much smoother.
Why Serve the Opposing Party in Family Law
The US Constitution Due Process clause, particularly the Fourteenth Amendment, affords each citizen the right to live their life free and fair if certain measures are in place. The specific language that no one shall be “deprived of life, liberty or property without due process of law”. This basically means that “fairness” must be at the center of all government procedures with respect to its citizens. And the process of serving litigants in an action is one of those procedures that must use fairness and notice. The parties are deprived of fairness, if they are not put on notice or if they are unduly burdened by being sued in a jurisdiction that has no authority over them. The procedural rules the states implement regarding service of process address these issues.
How to Serve the Opposing Party in Family Law
Each state has its own procedural laws regarding service. The basic premise of each of them is to give the parties appropriate and adequate notice of legal action in court or administrative body, to exercise jurisdiction over them. The court, or administrative tribunal, cannot exercise jurisdiction over a person if the person was not properly served.
The steps to serving a party in action include:
- The individual performing the service meets certain requirements
- The location where the person can be served, i.e., their home, work, etc.
- The method of delivery of the documents to be served, i.e., affixing to the party’s front door.
- The days & hours permitted.
- The person(s) who can receive the documents on the party’s behalf.
Planning to Service of Process on the Opposing Party
So, from a strategic standpoint, I am all about strategy in all the services I provide, knowing when to serve the other party takes careful thought. Of course, within the purview of your state’s procedural rules, there are times when you should plot out service. We know the reasons the legal reasons why a party should be served, but thinking about the practicality of serving them is important.
Opposing parties have a time limit to “answer” the Complaint they were served within a divorce or custody action. The clock starts from the time they are appropriately served and failure to respond within that time can lead to a default judgment. (Default judgment limits the ability to claim any defenses, counterclaiming.) So, if you want the case to move faster so that you can get a resolution faster, then ensuring effective service is prudent.
The other party has the right to raise defenses in their Answer or Response to your Complaint. If you know that the defenses, they plan on raising are time-sensitive then you would want to plan the service of your initial Complaint around that.
If you are concerned about your safety or the safety of your personal possessions and how service of process can jeopardize these, then you need to make special arrangements. Domestic violence officers, advocates, etc. can help you develop a plan to have the other party served while keeping you, your family, and/or your things safe.
In conclusion
Serving the opposing party is a must in family law matters and can make a difference in the overall outcome. You should consider the details of this aspect of the case before you start.
Child Custody Home Inspection: In child custody cases, the courts will have the home of each parent (or party seeking custody) inspected by the appropriate agency. Usually, the office of Child Protective Service (CPS) will be responsible for conducting the home inspection and reporting back to the court on it. The purpose of these inspections is to ensure that the home environment is safe and suitable for the child(ren) to spend any considerable amount of time there.
What is a Child Custody Home Inspection?
Depending on your particular jurisdiction, the term used may be “home study”, “home inspection”, “social study”, home evaluation” and so on. The overall objective is the same no matter the jurisdiction or the term used. The objective is to see the home environment and the child with each parent in that environment to see if the custody best interest’s standard factors are being met. Home inspections are different from custody evaluations. Custody evaluations are typically conducted by a mental health expert/professional. Home inspections, on the other hand, are usually done by social workers, child protection professionals and the like. Some custody evaluations include a home inspection component so the mental health professional may in fact have the interviews done in the home to cover both, however.
Best Interest of the Child Custody in Each State
How You Can Use the Inspection to Your Advantage
Although a home visit by CPS is meant to be objective, as a parent you could (and should) use the opportunity to present your circumstances in the best possible way to help your case. Be careful of course as you do not want to be too obvious that you are trying to unduly influence the worker. Be cordial and welcoming, for example but do not overdo it. Show the worker your child(ren)’s favorite space, activity or item. Schedule the appointment at a time when you and your child(ren) are engaged in an activity that you both enjoy. Be sure that the space in clean; that you have adequate food; that safety measures are in place and that no one who does not live in the home is not present at the time.
Show the worker how you encourage learning; how you discipline; nurture their development; support them emotionally and foster a relationship with the other parent. You can ask the worker questions. You can offer to provide evidence of your being “fit” and/or of the other parent being “unfit”. However, the way you present anything must not come across as negative toward the other parent so be mindful.
Use this opportunity to give the worker what he/she needs in the event they are called a witness in your case. But again, be careful because it can work both ways you must be mindful of what you say and how you say it in custody cases. Focus on the best interests of your child(ren) no matter what. If you do not know what that is, ask before the worker shows up to your home.
What You Say In Family Court Matters
The Weight Given to Reports in Child Custody Home Inspection
The court defers to home inspection reports significantly. The court will rarely find that these reports (the worker’s account of what he/she saw) lack credibility. If there are specific facts the court wants the worker to focus on, they might ask them to do a supplemental or follow up visit. In addition, either party can request a follow up visit if they believe that something important was left out or overlooked. The guardian ad litem (or child’s attorney, advocate) can also point out omissions in the report and request another visit.
If either party objects to what is in the report there is recourse. They the opportunity will more than likely must “impeach” the worker that conducted the inspection. If the objection is to something someone else said, then the party must impeach that individual. Challenging the truth of what someone else said to the worker may be considered “hearsay”. These third-person statements are subject to being precluded under hearsay evidence rules.
The worker that does the report is human too, they make mistakes. Although they are given considerable deference, you must voice your concern with their method, their facts, etc. if you have any.
In Conclusion
Home studies, or whatever they are referred to in your jurisdiction, are almost inevitable in child custody cases. No need to dread them, to avoid them or try to manipulate them in any way. You can use them to your advantage as long as you are prepared and informed on how to do that.
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