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ItalianPrincess1217's avatar

Should I try to win my custody case without a lawyer?

Asked by ItalianPrincess1217 (10135 points ) January 10th, 2013 from iPhone

Hi Fluther friends! I’ve missed this place :)
I am currently in the middle of a long and drawn out custody battle, if it can even be called a battle. The father of my son has never actually shown up to court yet. The judge recently suggested I get a lawyer because apparently until I locate the father and have him served with the court papers to give him a fair chance at showing up to court, the court date will keep getting postponed. The problem is, I have no idea where to find him. He abandoned us almost a year ago and never contacted us since. He’s never paid child support or tried to see his son. I’m not sure why I have to go above and beyond to get full custody of a child who I have fully supported for the past year of his life but that’s the way the NY systems work.

Now the issue is lawyer cost. I have done my research, made my calls, and quickly discovered I will need a hefty retainer fee. It seems ridiculous to pay thousands of dollars for something like this. Is there anything I can do on my own to win this case? How can I show the judge I’m making reasonable effort to find him and serve him? If I have him served and at that point he didn’t show up, the judge would rule in my favor. Am I able to put the court dates in the newspaper as a reasonable effort to give him notice of the court date? I believe I have heard this before? I appreciate any suggestions at this point. I have taken so much time away from work for court already, I have to pay to have him served when I do find him, so I would like to avoid lawyer fees if at all possible.

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28 Answers

CWOTUS's avatar

Welcome back, @ItalianPrincess1217.

Let me ask what seems to me to be an obvious question: If you can’t even locate the father, and if he’s not attempting to make contact and claim custody, why is a custody hearing even an issue?

Why even bother with the trouble and expense if there’s no contest to settle?

[EDIT: I think that if I were you I’d just abandon the whole “custody battle” as a non-issue.]

Crashsequence2012's avatar

“I would like to avoid lawyer fees if at all possible.”

As is almost always the case you’re going to get what you pay for.

diavolobella's avatar

I’m not sure about the laws in your state, but in many states there is indeed something called “service by publication”, which is what you referred to when you said you’d heard about putting an ad in the paper. If you have made reasonable efforts to locate the father of your child (sending certified letters or having a service processor attempt to serve him at his last known address) and been unsuccessful, your attorney can put notice in a newspaper of general circulation giving notice of the hearing. Usually the ad has to appear at least 3 times within a time period (something like 30 or 60 days – it’s been a long time since I did family law). To find out if this is possible in your area and how to go about it, please go ahead and consult an attorney. Let them know up front that you are dealing with a case of abandonment and notice by publication, and I feel fairly confident they aren’t going to require a retainer for something that basic. We didn’t at any of the firms I worked for when I was still doing family law. Also bear in mind that they will have to present you with a bill showing the actual hours worked (and you need to keep track of things like your phone calls and office visits with them), and the court costs and filing fees, then they subtract that from the retainer and refund you the unused balance of the retainer. Usually a large retainer is requested when the attorney feels like the case has the potential to turn into something far less simple and more time consuming than it initially appears.

ItalianPrincess1217's avatar

@CWOTUS I wish I could just avoid court altogether but the law here is that if at any point the father were to want to suddenly appear and come “kidnap” my son it wouldn’t be considered kidnapping in the laws eyes. The cops could do nothing to get him back. I would have no rights to him because I never filed for full custody. This is what several lawyers and cops told me I should immediately do or I could be in a very sticky situation in the future if the father ever wanted to pull anything.

diavolobella's avatar

You should also file for custody because whether or not he wishes to take part in his child’s life, he is still liable for and should be paying child support.

burntbonez's avatar

I believe there are process servers and that is the only job they do. They may be cheaper than lawyers. Here’s the first google hit I got on process servers. There are, of course, many others.

diavolobella's avatar

All a process server does is hand someone a summons or complaint and then verify (via signing it) that they served the person. That’s it. They don’t do anything on your behalf in court or represent you in any way, shape or form. Pretty much anyone can serve someone. As a paralegal, I’ve even served people.

burntbonez's avatar

Seems to me that’s what she wants. Someone to serve the papers. Find the person and serve the papers. Then it sounds like she feels like that’s all she needs.

diavolobella's avatar

@burntbonez Well, not really. If she successfully has him served, then he’s going to show up in court and she’s going to need a lawyer at her hearing. It sounded to me like she’s tried to find him and can’t and is more interested in having him “served” via publication and just getting on with it without having to actually deal with him showing up. If she finds him and he’s personally served, it’s a whole other ball of wax. When you serve someone, it’s a court order and they HAVE to appear or they are in contempt. At this point, serving him via publication would make life a lot easier since the hearing won’t be contested.

burntbonez's avatar

I see your point, @diavolobella. My interpretation was that even if he was served in person, he wouldn’t show up. And that if he did show up, she would still win, even without a lawyer. She’s trying to save money. It sounds like you’re saying it is risky to do it without a lawyer, unless she can serve via publication. I wonder how she can find that out.

Cupcake's avatar

I’m so sorry you’re going through this.

I dealt with something very different, but kind of similar. My son’s biological father was never in his life and is not on the birth certificate. My husband tried to adopt him when we got married. We actually had to name the father, have him served and either (1) get his consent for the adoption or (2) have a trial to determine that he had no parental rights. He contested the adoption and we ran out of money before we could go to trial. (We are also in NY)

Unfortunately, I think you need a lawyer. Have you looked into pro bono? Victims assistance? Legal aid? Discounts?

I did locate the biological father by paying for a background check (~$25). Have you tried this?

janbb's avatar

Have you looked for a lawyer through Legal Aid or some other public legal service?

diavolobella's avatar

@burntbonez It’s always possible that if he was served in person, he might still not show, but that tends to backfire (if that’s what you are hoping for). People tend to take getting personal service seriously and they really should since it’s an official court summons (i.e. order) to appear. The judge has the option of sending a sheriff to come get your butt and drag you into court if you are personally served and don’t show up. So, if you are hoping to have an uncontested matter against someone who has abandoned you, it’s really going to make things a lot easier if you don’t find him and just “serve” him via a newspaper ad. Cost wise and time wise. You are virtually guaranteed he’s not going to show up and contest anything. Sometimes people will contest matters just because they are mad you dragged them into court and because if they are located, they know they will be ordered to pay child support. Then you get into the whole “well, if I HAVE to pay child support, I insist on having visitation with my kid” issue. That’s the sort of possibility that makes an attorney charge a big retainer fee.

diavolobella's avatar

@janbb That’s a great answer. Legal Aid is always a great resource. Bear in mind that in some places though (like here), they won’t get involved in a divorce or custody case unless there is domestic violence involved. They are funded by grants that are very specific about what they can be used for, so that limits the types of cases they can take. I worked at Legal Aid for 3 years.

burntbonez's avatar

@diavolobella I guess it all depends on the judge. I’m guessing the judge wants to make sure the father has a chance to be a father. If the judge is that concerned, then she may have to serve him a summons of some kind. I don’t know what a service in a newspaper counts as. But we’re only reading between the lines on the OP. Maybe the OP can give us more information about what she thinks the judge will accept.

diavolobella's avatar

@burntbonez It’s not really up to the judge. Service of process laws are very specific and judges routinely abide by them unless someone contests it after the fact.

If she can show that she made a reasonable attempt to locate him and was unsuccessful, service of process by publication will automatically be accepted. Acceptable proof of inability to personally serve is nothing more than several certified mail return receipts showing delivery was attempted and failed or a form signed by a process server saying he attempted service on 3 occasions at the defendant’s last known address and he no longer lives there. That’s all you need to try before you switch to the option of service by publication.

The judge generally doesn’t get involved in or question service of process unless it is contested by the defendant later on, like if he shows up in court a few years from now and says “Your honor, she knows where I live and always has. Here’s a letter she sent me at my address to prove it. She purposely didn’t serve me.”

marinelife's avatar

Do not leave your child’s custody to chance. Hire the attorney. They have investigators who can find people. The judge is giving you sound advice.

You could check around and see if there are any low-cost attorneys who take these cases for little or no fee. Check with women’s groups in your area.

Judi's avatar

Can you just pay a process server to hunt him down?That’s all an attorney will do.

ItalianPrincess1217's avatar

@janbb Unfortunately Legal Aid doesn’t deal with custody cases. I already checked into that.

ItalianPrincess1217's avatar

@all The chances of him showing up even once he’s served are slim to none. He has warrants out for other issues so I’m sure he knows once he shows up to any court he’ll be arrested. He is very good at hiding. Background check didn’t help. Last known address was years ago.

diavolobella's avatar

@ItalianPrincess1217 Ok, then. I’d talk to an attorney and make sure they understand up front that it’s a simple case of service by publication, it’s not going to be contested and see if they will come down on the retainer. Although it’s a given, make sure they will refund you the balance of the unused retainer and let them know you will be reviewing their billing scrupulously.

Lastly, go talk to the local bar association. While Legal Aid can’t help you, many attorneys will take cases on a pro bono basis through the local bar association pro bono program. They do it as a public service and there is no charge (other than the court’s filing fees, which they do not have the power to waive). All bar associations have pro bono programs and with a case as simple in nature as yours is, you have a good chance of them hooking you up with an attorney who will do this for you for free. Also, try this resource:

http://www.lawhelp.org/ny/

Good luck!

Judi's avatar

Once he’s served, if he doesn’t show up I believe you will win by default. If you have the paperwork ready to serve him, you will save tons by just hiring the process server. That’s all the judge is waiting for correct?

blueiiznh's avatar

Much of this is dictated by the state, county and district laws.
With the additional information you provided maybe hiring a Private Investigator might be a good first step. This will show an additional proof of attempt.
Just be very prepared to have the right resources in court to be able to win your case of this most important aspect of your life.
Do whatever you can to win you case at all costs. You cannot really risk this.

ItalianPrincess1217's avatar

@Judi Yes I believe the judge just wants me to serve him so be knows a reasonable attempt has been made. But until I locate him, how can I serve him?

diavolobella's avatar

@ItalianPrincess1217 I already answered that. If you can’t locate him, you can serve him via publication. If you really are that dead set against hiring a lawyer, call the court clerk’s office and ask them to tell you how to go about it. If they are friendly they should give you the basics of how service via publication is done, but bear in mind they will not answer any legal questions. They should just give you the bare facts about the procedure for that though, without any hassle.

diavolobella's avatar

@ItalianPrincess1217 I found one last bit of information online about service by publication. Bear in mind this site is talking about divorce service, but I imagine the process is similar or the same for custody. This is for NY, which is where you said you are:

http://www.3stepdivorce.com/missingspouse/newyork.shtml

bkcunningham's avatar

Have you contacted the county social services in you area? They will represent you and help you.

tinyfaery's avatar

If you continue what you are doing and show up to every hearing, jump through all the hoops, the judge will eventually get tired of you and give you what you want.

Attorneys are really just middlemen anyway. You’re smart. You can use a process server. It will be a cost, but not as much as an attorney. You can also serve by publication. Look into it.

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