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Can someone serve my 12 yr old daughter a summons if I am not home in Portland, OR

Portland, OR |
Filed under: Family law

My childs paternal grandmother is petitioning for visitation

Attorney Answers 2

Posted

The rule is ORCP 7. With respect to leaving a summons with another household member the rule states:

D(2)(b) Substituted service. Substituted service may be made by delivering true copies of the summons and the complaint at the dwelling house or usual place of abode of the person to be served, to any person 14 years of age or older residing in the dwelling house or usual place of abode of the person to be served. Where substituted service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed, by first class mail, true copies of the summons and the complaint to the defendant at defendant's dwelling house or usual place of abode, together with a statement of the date, time, and place at which substituted service was made. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, substituted service shall be complete upon such mailing.

It may be that your 12 year looks old enough to pass for 14 - so yeah they could hand her the summons thinking she is old enough. They would then have to mail a copy to your anyway. Let's suppose the mistakenly hand the papers to your 12 year old then mail you a copy. So know you actually have the documents. Can you argue that it's invalid becaucse your daughter was 12 not 14? Yes and No.

It wasn't done right but it doesn't matter because you actually got the papers in the end so you have no excuse for claiming you weren't notified about the lawsuit. Serving papers is about giving someone notice that there is a lawsuit and they need to take steps to protect their rights. If you actually know about the lawsuit then there is no need to serve you again. Technicalities don't get you off the hook.

Grandparents have very limited rights and can't generally interfere with a parent raising their child. I suggest you get legal advice promptly when you get the paperwork. You may not have such a big problem after all. But only an attorney will be able to help you figure that out. http://www.portlandlegalservices.com

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Asker

Posted

Thank you very much for your response, it was very helpful.

Joanne Reisman

Joanne Reisman

Posted

You are welcome.

Posted

I agree with Ms. Reisman, but I write to clarify. "Yes and no" is correct, but may not help you. Here are the implications for improper service:

Once a defendant (or Respondent) is served, they have 30 days to file a response. If they don't, then on day 31, the plaintiff (or Petitioner) can ask the Court for a default judgment, granting all relief requested in the complaint. To do this, the plaintiff has to demonstrate that the defendant received notice of the suit. The affidavit of service, showing how service was done, is the proof that the defendant got the documents notifying them of the suit, or, at least, that the plaintiff used reasonable efforts to make them aware of it. Adults are presumed to be responsible for keeping track of documents they receive and responding properly. The court is not supposed to issue a default judgment if service was not completed improperly.

If service was improper but the court issues the default anyway, or if the process server lied on the affidavit of service, or if the default was improper for other reasons, then the defendant can file a motion to overturn the default judgment under ORCP 71. If this motion is granted, it does not necessarily get rid of the entire lawsuit - it just gets rid of the judgment. The defendant will then be served again, and given the opportunity to defend the case.

In order to get the judgment overturned, the defendant would have to argue that they didn't have /actual notice/ of the case - that is, they really didn't know about it. Technical defects in service don't really matter once the defendant actually knows about the case. Service has to be technically perfect only in order to demonstrate that the defendant /should have/ known about the case. So arguing about improper service is a losing battle - if you try, it'll be clear that you got actual notice. The only exception is if there's already a judgment against you. Because they court could deny the Rule 71 motion to overturn the judgment - and because that wouldn't resolve the underlying problem - relying on improper service as a defense is pretty risky.

The point is, now that you've got this summons and complaint, you'll have to deal with it. For whatever it's worth, grandparents' rights to sue for visitation are fairly limited. So you shouldn't be afraid of taking the case on its merits, rather than arguing about service. You should consult with an attorney who specializes in domestic relations. You can call the Oregon State Bar for a referral at 503-684-3763.

www.northwestlawoffice.com

Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. No posts or comments on this site are in any way confidential. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: jay@northwestlawoffice.com | Online: www.northwestlawoffice.com

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Joanne Reisman

Joanne Reisman

Posted

Why too much technical stuff Mr. Bodzin - the court will overturn pretty much any default if you can give them any reason as long as you act promptly and within one year. This really isn't an issue about concern over a default - she is wondering what happens if they leave the summons with her 12 year old daughter - my educated guess is they already did come to the house and already did leave the documents with the 12 years old and what is really being asked her is if she can safely ignore the papers that she now has actual knowledge of - the answer is no you can't ignore legal papers you actually know about that involve you and a legal proceeding no matter how faulty the process was that got the paperwork to you. As for calling the Oregon State Bar for a referral - it's nothing more than a list of attorneys who pay to be on the list and the bar reads you a name on the list. They will talk to you for $35 but that doesn't get you very far. Most attorneys that use this service are new lawyers trying to build their practices so it may be harder to find an attorney with experience off this list. Also the attorneys on the list will have to pay the Oregon State Bar a percentage of all the fees they collect from you if you hire them. In short - you can do as well searching on Avvo of the internet to find an attorney and then the attorney won't be sharing fees with someone else.

Joanne Reisman

Joanne Reisman

Posted

Also, most attorneys will talk to you briefly for no charge to find out what your case is about when you call them. So don't be afraid to call and talk to the attorneys and ask about their rates before you make an appointment.

Joanne Reisman

Joanne Reisman

Posted

All the attorneys who have responded here on Avvo are good attorneys - any of them would be able to help you.

Asker

Posted

Thank you. I don't think she will win this, she is not a healthy person for my children to be around and I can prove this, but I just wanted to know about the service rules. Im going to file a motion to fight this as I am a mom trying to establish stability and order in my home. It is my understanding that most judges will not allow a grandparent to interveen especially when doing so would disrupt the home. I just need to get help from legal aid as I am a student student and mother of 2 w/one on the way so I cannot afford a regular attorney. Thank you again for all your help.

Joanne Reisman

Joanne Reisman

Posted

Do not file anything without talking to an attorney. I suspect that the proper response is a motion to dismiss and this nightmare will go away. But I can't say for sure without looking at the paperwork because there are limited circumstances where grandparent might have the right to intervene. This is the kind of situation that might be cheap to contain now but very very expensive if you fumble with it. Legal aid is probably not going to help you - you can call - but they turn away thousands of callers every day because they simply don't have the funding to take many cases. You will need to find funds to at least talk to an attorney and understand if you are in the situation where grandma may have some rights or if this case falls into the easy dismissal situation. Hopefully you won't need to spend much money on this. But getting good advice now is critical. If you don't the nightmare could only be beginning.

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