My childs paternal grandmother is petitioning for visitation
Estate Planning Attorney
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
The comments by this author to questions posted on Avvo are designed to foster a general understanding of what might be the law governing the area of the legal problem stated and suggest what might be the approach to finding a legal solution. Under no circumstances is this author acting as the attorney for the party who posted the question or as the attorney for subsequent readers to the question or response and no attorney client relationship is being formed. This attorney's comments are not intended to be a substitute for getting legal advice from a licensed attorney. A reader of this author's comments should never act on the information provided in these comments as though these comments were legal advice and should always seek legal advice in a personal consultation with an attorney in their jurisdiction before taking action. The information provided here is not intended to cover every situation with similar facts. Please remember that the law varies between states and other countries and is always changing through actions of the courts and the Legislature.
1 found this helpful
4 lawyers agree
Family Law Attorney
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.
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: firstname.lastname@example.org | Online: www.northwestlawoffice.com
1 found this helpful
3 lawyers agree