Legal Question in Family Law in New York
Appear Without Subpoena Being Served
I received a phone call two weeks ago from my ex-husband stating that he was taking me to court on December 10, 2003. I have received no formal subpoena requesting my appearance and received no other legal notice indicating that there is an actual court date. I called the court to see if case was actually on schedule and the officer told me I have to appear in person with ID to have question answered. She then informed me that I would then have to appear. Because I am uncertain whether this case is on schedule or not I have not even retained a lawyer. What happens if I do not appear, this matter is in regards to the custody of my two children whom I have raised pretty much on my own since they were babies. They are ages 10 and 13 and wish not to see their father because they are afraid of both his driving and his temper plus they really do not even know him.
2 Answers from Attorneys
Re: Appear Without Subpoena Being Served
This is a difficult situation. Technically, the judge can grant his motion for custody if you do not show up. then you would act to have the decision 'vacated' because of lack of service. This is a lot of work and stress, as well as extra legal expenses.
I have such a case now (it was on for November 21 and we received no service). I had checked with the court and found the motion and return date. My decision was to show up as if we had been served. I saved my client some time, stress, and money.
Another lawyer might have a different answer as to how to deal with this situation, but this is my answer.
You are welcome to a consultation for no fee at my offices at 42 west 44th street, NY,NY. Please call for an appointment first (646) 591-5786.
Re: Appear Without Subpoena Being Served
DO NOT IGNORE THE PROPOSED SCHEDULED COURT DATE. APPEAR, with or without an attorney; get there early and be prepared to wait.
If the case is actually on calendar, for whatever, you can explain to the Court that you did not receive service of any documents and have not therefore, had an opportunity to consult with an attorney. If the date is the first time on calendar or restoral to calendar; the judge is likely to adjourn the matter, to give you an opportunity to obtain counsel.
If you cannot afford an attorney, due lack of income, (on welfare, unemployment, SSI or other minimum income) the Court can appoint counsel for you. Be prepared to "prove" your minimum income if this is the case.
GOOD LUCK.
PHROSKA L. McALISTER, ESQ
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