Service by Facebook

Service of process is an essential part of our justice system.  If one is the subject of a complaint or petition, in order for them to confront that allegation in court, service of process is required as an essential part of due process.  While service of process is required for all kinds of litigation, it is especially important for Orders of Protection.  In family court when an order of protection is granted it is only effective once it has been served on the respondent.

In the majority of cases service can be done by the local police department tasked with serving the order at no cost to the petitioner.  However, when police are unable to locate a Respondent, they notify the family court that they were unable to do service.  It then falls on the petitioner to do personal service, which is when the required documents including the Order of Protection are given to the Respondent (or someone 18 years or older in their household) by someone 18 years or older who is not a party to the action.

According to NewYorkProcessServer.Org, process service fees in New York range from $85.00 to $95.00 for service of process within 2-5 business days.  That is, if you have an address for the Respondent.  Unfortunately, due to the rise of the heroin epidemic in Erie County the respondents in orders of protection cases are increasingly children or grandchildren who are financially exploiting their parents or grandparents in order to secure money for drugs.  They are often without a permanent home address and are therefore difficult to locate and serve.  In addition, paying a process fee is difficult for many of our clients who are low income.

If a respondent is unable to be served via personal service, CPLR section 308(5) provides a final option: alternative service.  In Family Court, in the vast majority of cases, substituted service means service by publication.  Service by publication is specifically authorized under CPLR 315.  Locally, this often means a notice in the Buffalo Law Journal, a weekly publication which costs $2.00 and is read almost exclusively by members of the legal community.  That means that a typical respondent who is unable to be served by traditional means would need to purchase a copy of the Buffalo Law Journal and scan through 10 plus pages of notices on the week in which they were served via publication.  Whether or not they see the notice, the respondent is then considered served and a default judgment may be entered against them.

There are several problems with using this method of service by publication.  Most glaringly, there is a due process concern; is it even remotely effective to publish in a (relatively) obscure professional publication that the chances of a respondent even knowing exists, much less reading, is next to zero.  Second, it leaves petitioners on edge; without personal service respondents do not know there is an order of protection, leaving petitioners in danger.

A recent court decision in New York, Baidoo v. Blood-Dzraku (N.Y. Mar. 27, 2015), marks yet another decision in favor of allowing service through social media, in this case Facebook, as an acceptable alternative method of service.  With the advent of social media and the millions of adults in the United States checking their accounts regularly, service through this medium, while not perfect, seems to make a lot more sense than the existing go-to method of service by publication.  Often clients will be aware that the respondent has a Facebook account, and while this may not have a home address, it is the respondent’s home on the internet.  The aforementioned decision allowed service of process via Facebook in a divorce case.  There is a much better chance that a notice sent to a respondent’s Facebook account will be received rather than the respondent reading it in the Buffalo Law Journal.

The court in Baidoo also notes that service by publication “is almost guaranteed not to provide a defendant with notice of the action for divorce, or any other law suit for that matter.”  Therefore, if you find yourself having difficulty with service of process, ask about using Facebook.  As the court concludes, though service by Facebook is “novel and non-traditional, it is the form of service that most comports with the constitutional standards of due process.”  This method of service would ease a considerable burden on the courts and petitioners in family court, and would serve to protect the constitutional rights of respondents.

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