Getting BM served with Citation and Notice!
Grrr! I'm so frustrated! BM was diagnosed with Bipolar in December, but since DH got primary custody of 4yo SD last may we do not want to get into another court battle. Then in Feb. BM's mother called us to help SD while she was with BM for her weekend because BM was having SD call and beg for money. We also all suspected BM has been on drugs because of her severe weight loss, quitting her job, selling her car and blowing through the seven grand she got for a tax refund by fraudulently claiming someone elses children.
CPS got involved and began an investigation, when they finally got ahold of BM they had her sign a plan that she would stay on her meds and see a Dr. She refused a drug test and told them to call her attorney. Then they could't reach her.
Fast forward to April and BM admitted to me she was not taking her meds, then blew up at DH on the phone. We called the CPS caseworker and she said she could not get BM to answer her door or call her back, she came to our house and met BM when she came to get SD. The next day the caseworker met BM at her apartment and BM failed a drug test.
CPS had been pressuring us to go to court, claiming they could not stop BM's possession times with SD because of the court order. They said if we went to court their report would back us up that BM needs only supervised access to SD.
We met with an attorney, and she wanted $2500 to get started. We decided to do it on our own and I drafted the petition and an ex parte for extraordinary relief. We know it was by the grace of God that DH was able to speak to the Judge and the Judge granted the ex parte. We got a hearing set and decided to hire a private process server, hoping that would be faster than having the sheriff or constable serve her.... WRONG!
He had a very professional website, was professional and personable on the phone, but we gave him our documents and the information along with a check, he's cashed the check but won't call us back!
I'm so dissapointed! Dh and I have decided that I will go tomorrow to the court and get another citation and notice and pay the constable to try to serve her. We've also got to get a subpeona for CPS to appear at our hearing.
THis is so upsetting. We don't want to be back in court. We don't want this stress of waiting and wondering if BM has been served and if this guy just ran off with our money.
Has anyone delt with this before? I read if we can prove we have tried and cannot locate BM to serve her we can serve her by publication in the paper. anyone done that before?
Thank you in advance for any help or guidence.
Shell
Even when backed by an attorney and using the constable
and process servers it is not always a slam dunk to get an NCP to accept a summons or other court ordered documents. In my SS's case, BioDad repeated refused to be served and even physically ran from the process server on more than one occasion (according to the constable's office). Eventually the courts came back to my wife for information on BioDad's income potential and we provided his SSN and copies of his state journeyman's plumbers license, wage distribution for plumbers in his county of residence, etc...... The court set his CS at a level commensurate with the average hourly wage for licensed plumbers in BioDad's county of residence.
When BioDad got the new CS order he freaked out and very quickly showed up at court to file for a review of CS. We ground his ass up in court for running from the process servers/constables which BioDad of course denied. Ultimately his the CS level that was set using the info provided by my Wife and I was reduced by $350/mo but the new amount was 3x the amount prior to the amendment effort my Wife initiated.
BioDad was pissed because he was convinced that his CS would go down to nearly nothing because of the 3 more out of wedlock spawn he had added to his menagerie and we were pissed that the Judge did not keep his worthless POS ass in the ringer for the amount that was set during BioDad's "Catch me if you can, run from the constable" bull shit.
Ultimately I guess that any decision that pisses both sides off equally is probably a fair decision.
Good luck and best regards,
Thank you so much for your reply Rags,
We'd be fine if it would work that way for us too. We just feel so trapped because from what I've read in the Rules of Civil Procedure, if we can't prove she's been served the court will not enter a default judgement against her. We're stuck!
Two roads diverged in a yellow wood, and I---
I took the one less traveled by,
and that made all the difference. -Robert Frost-
One more option
If she is evading service, you can ask the Judge for an order to serve her substitutionally. The options are asking to leave with a relative, post in the newspaper, tacked to the door.
I got a chuckle out of Rags "ground his ass up in court"! LOL.
We all smile in the same language
If you can get the Judge to recognize that BM is avoiding
service then it is possible have a denial of receipt considered as legal receipt by the court. The way to do this is to send the summons via registered/return receipt US Mail. If she declines to sign the receipt form and refuses to take the package the USPS employee will not this on the form which you can submit to the Judge as proof of denial.
In that case active denial is the same a legal receipt.
Kind of convoluted and juvenile but it may work for you.
Good luck and best regards,
So what do you all think?
Should we keep trying, then just show up at the hearing and tell the judge she's hiding out? Or do we contact the Court and explain the situation and try to reschedule the hearing?
Thanks for the replies, we'll send a copy certified mail return receipt tomorrow. I'm just afraid she won't even come to the door for mail.
The process server finally did email me back yesterday with many apologies, he had a family emergency and went out of town. He said he tried to serve her Monday and Tues last week and her mother fed him a bunch of BS that she's not staying there and they do not know how to reach her.
BM finally returned my calls yesterday but would only talk to SD. SD asked her to come over and BM said she would ask her mom to drive her, (Must be staying with her mom!). BM asked SD, "Who is over there?" then She told SD she would call right back. SD told her, "I'm just going to stay on the phone Mommy, I'm staying on the phone!" BM hung up, and never called back! How could you do that to your child?
DH called her an hour later and left a message that she was welcome to come see SD and that SD is still waiting for her to call back. She still never called back.
Two roads diverged in a yellow wood, and I---
I took the one less traveled by,
and that made all the difference. -Robert Frost-
It's better to serve in person.
BM in our case tried to say she was served by substitution (publication). which after repeated attempts to serve her in person, our attorney at the time filed to serve by substitution. Well, the sheriff's deputy went to her house to leave it with someone there over 18 and he finally caught her.
Funny thing is, the copy of the affidavit from the sheriff's deputy is on the BACK of a document in the court records. BM's dumbass attorney tried to get a new trial based on her being served by substitution when it was right there in black and white, she was served by hand in person. oops. No new trial for you, lady.
So, I'd keep trying to serve her in person and maybe try both routes, the official constable route and the sneaky guy you hired route. Between the two of them, they ought to be able to catch her. Besides, she's a drug addict. She's got to let her guard down sometime.