Legal Question in Family Law in New York

I am a divorced mother with residential custody of my only infant issue son, I have joint legal custody of same with the father. due to financial issues, I was forced to move several times and gave temporary legal custody to the child father for the purpose of stability of the child. this lasted two years plus..

On or about Sept. 2009 The father moved by order of show cause to be granted residential permanent custody of child for several reasons. Being a single income mother with child stating with his father based upon a mutual agreement between parents, along with a signed affidavit granting temp. residential custody between parties, the father filed show cause in Suffolk County fam. court.

My question has to to with the Laws (CPL ?) regarding service. During the entire life of the child, from birth to present, both parents have been in regular daily phone contact, both parties have been aware of the residence, in fact, the Order to show cause lists, among other things, a pattern of chronological address changes made by the custodial mother, as a basis of instability of the child. this established evidence that the father knew at all times the exact location of the Mother.

Both parents in fact work in the very same town of Westbury N.Y. and are in regular daily contact.

Upon service of the Order to Show Cause, the fathers attorney chose to serve the mother by FedEx overnight mail. No effort was made to contact the defendant in any other form.

Since the father has had temp. residential custody for 2 1/2 Years, he decided that his court ordered child support was no longer binding since he had residential temp. custody, therefore he stopped paying child support, thus weakening the financial ability of the mothers ability to obtain Counsel, Yet the income of the mother was too much to get a Court appointed attorney issued.

Being unaware of any legal action, the mother had not been personally served with the order, in fact, FedEx left a paper door tag on an outside door knob on a rainy windy day.

OBLIVIOUS TO ANY EXPECTATION OF SERVICE ATTEMPT, THE DEFENDANT continued to resume her daily life.

Upon information and belief, A resident of the garden apartment complex where mother lives, found the wet and tattered fed ex door tag and placed it upon the mothers door knob on the 14th day of September 2009. On going to her job at approx, 2:30 P.M. the defendant found the fed ex tag on her outside door knob. The tag was marked by FedEx that: ONE DELIVERY ATTEMPT WAS MADE ON FRIDAY SEPT 11TH, 2009 AT 10:35 A.M..

This was the first notice the mother had of any Legal issue whatsoever, she Immediately called the father, and did not make contact, so she went to FedEx and got the show cause, and called the Fathers attorney. She advised him that she was first notified that she had an Order to appear in Family Court the Morning of Sept 14th, yet received service at 2:30 p.m. of the same day. At this time she was told that she fully lost custody of her child due to failure to appear. Having no means of being able to afford a lawyer, she was lead to believe that she is helpless.

Having a final court date in regard to show cause petition, the court granted the father full temp. custody of child pending Jan.05, 2010 Court date to have the Court grant full custody to father based upon default by appearance of defendant.

The mother still has no means whatsoever to get court Ordered counsel based upon income, yet makes only enough to pay her living expenses.

RESOLVED THAT SHE HAD NO LEGAL RECOURSE, a friend and student paralegal suggested that she ask an Attorney the following Question for some Prose rebuttal objection at her next and First appearance in Court on Jan.05, 2010.

Need some legal answers to these questions:

#1) Upon information and Belief, The defendant was told that service by fed Ex (aka: Nail and Mail) was not Legal unless some form of personal service was attempted by a process server, and the respondent was fully unreachable, and only then can the server request that the Court grant Nail and Mail authorization for service, (see Family Court : GF40+GF41 Forms) In the Order to show cause itself, it clearly proves that the father knew exactly where the mother was at all times, in fact, the visitation exchanges were regularly made in west bury, where both parents work. The father had made no reasonable attempt whatsoever to effect personal service despite knowing exactly where the the mother was at all times, and even being in continual and daily phone contact with her. The Court ruled default and Custody exchange to be ordered on Jan. 5, 2010, based upon failure to appear. What and HOW can Mother do to preserve and even stop this Court Order of Default?

Question #2) If the actual Show Cause points were never ruled upon on their Merits, and the Court maintains it's position to remove custody, does the father lose the right to resubmit his same show cause issues based upon the principles of: Res Judicata and Collateral Estoppel ?

Question #3) Despite the Allegations made in the Show Cause, the Father alleged Facts of the Child's wishes without the Court Appointing a Child Law Guardian for the Eight Year Old child himself, who clearly has a right to voice his own desires himself, without the the Fathers sworn hearsay of the child's desires.

#4) How does the Mother get some higher judicial intervention (i.e. Law Judge review, appeal, etc) on this First appearance date while Still unable to afford and or retain any Counsel? (Prose)

Please offer your Legal Opinion without the statement: You really Need to get a Lawyer, I know this, and CAN NOT CHOOSE TO PAY AN ATTORNEY VERSUS STARVATION AND EVICTION IF I DO!!! I just need something to preserve the issue until I can Get a Lawyer. Please Respond ASAP.

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