My husband has been subpoenaed for a neighbor's custody case.

[howjudiofyou]

What is the name of your state (only U.S. law)?

New York State.

My husband was served a subpoena yesterday regarding a neighbor's custody case. He was not home, and the papers were handed to me, his wife.

These are the papers:

http://i599.photobucket.com/albums/tt74/judigarber/Phonycourtpapers.jpg

Our neighbor is the respondent. The paper came from the petitioner, a man we have never met or spoken to. They are signed by his lawyer, not a judge.

I spoke with the Family court clerk, who told me my husband doesn't have to go if he's working. The court has no record of the subpoena. I also spoke to the petitioner's lawyer, who threatened to jail my husband and lied to me stating that his job has to pay his wages for the court date. After checking with my husband's employer, that only applies to jury duty, not witness testimony.

They subpoenaed my husband because one of the petitioner's witnesses claims my husband made a statement he never said. His presence is required to confirm his statement. It's difficult to confirm a statement that was never made. This witness happens to be the legal husband of the respondent, our neighbor. They live separately, but are not legally separated or divorced. The neighbor's lawyer plans on invoking marital privilege to discredit the testimony.

Long story short, my husband doesn't want to be involved at all and has no relevant testimony. He also doesn't want to miss a day of work. Does he have to go to court?

Sorry if this is long and confusing-we're both very upset. Thanks for reading.What is the name of your state (only U.S. law)?

 

[Just Blue]

What is the name of your state (only U.S. law)?

New York State.

My husband was served a subpoena yesterday regarding a neighbor's custody case. He was not home, and the papers were handed to me, his wife.

These are the papers:

http://i599.photobucket.com/albums/tt74/judigarber/Phonycourtpapers.jpg

Our neighbor is the respondent. The paper came from the petitioner, a man we have never met or spoken to. They are signed by his lawyer, not a judge.

I spoke with the Family court clerk, who told me my husband doesn't have to go if he's working. The court has no record of the subpoena. I also spoke to the petitioner's lawyer, who threatened to jail my husband and lied to me stating that his job has to pay his wages for the court date. After checking with my husband's employer, that only applies to jury duty, not witness testimony.

They subpoenaed my husband because one of the petitioner's witnesses claims my husband made a statement he never said. His presence is required to confirm his statement. It's difficult to confirm a statement that was never made. This witness happens to be the legal husband of the respondent, our neighbor. They live separately, but are not legally separated or divorced. The neighbor's lawyer plans on invoking marital privilege to discredit the testimony.

Long story short, my husband doesn't want to be involved at all and has no relevant testimony. He also doesn't want to miss a day of work. Does he have to go to court?

Sorry if this is long and confusing-we're both very upset. Thanks for reading.What is the name of your state (only U.S. law)?

Your husband was issues a COURT ORDER to appear. Not a suggestion. Not a request. AN ORDER.

He must attend.

 

[mistoffolees]

I would suggest that he first contact the attorney and tell him that he has nothing relevant to say and asking for the subpoena to be withdrawn. The attorney might do that if it's clear that he's not going to help the case.

However, if the subpoena is not withdrawn, he needs to go. He can face punishment if he ignores it. Even if it was issued by the attorney, it has the force of law since the attorney is acting as an officer of the court.

 

[liandrajade]

First off, dont let that NY atty bully you or your husband. 2nd, give me a few minutes to pull up the NY statutes on the legal procedure for sending a subpoena to a witness and whether he has to appear in person etc. FYI, I am also in NY.

 

[howjudiofyou]

Thank you, liandrajade. The lawyer is a real piece of work.

 

[Zigner]

Thank you, liandrajade. The lawyer is a real piece of work.

Too bad you chose to ignore the two accurate answers...

 

[liandrajade]

Thank you, liandrajade. The lawyer is a real piece of work.

Zigner and Mist are correct, they answered before I had a chance to post. However I will still look up the NY statutes specifically if you want further clarification.

 

[liandrajade]

Based on what I was able to research, your husband, if he really does not have anything to do with the neighbors situation whatsoever and made no such statements needs to file a motion to quash and object to being subpoenaed. I am NOT a lawyer, I would suggest consulting with one. There is no guarantee that the motion will be granted and he may still have to appear.

NY CPLR, Article 23, Section 2304:

§ 2304. Motion to quash, fix conditions or modify. A motion to quash,
fix conditions or modify a subpoena shall be made promptly in the court
in which the subpoena is returnable. If the subpoena is not returnable
in a court, a request to withdraw or modify the subpoena shall first be
made to the person who issued it and a motion to quash, fix conditions
or modify may thereafter be made in the supreme court; except that such
motion with respect to a child support subpoena issued pursuant to
section one hundred eleven-p of the social services law shall be made to
a judge of the family court or the supreme court. Reasonable conditions
may be imposed upon the granting or denial of a motion to quash or
modify.



However, NY CPLR DOES allow for the payment of fees and travel expsenses as listed in the CPLR:

NY CPLR, Article 23, Section 2303, subsection A

§ 2303. Service of subpoena; payment of fees in advance. (a) A
subpoena requiring attendance or a subpoena duces tecum shall be served
in the same manner as a summons, except that where service of such a
subpoena is made pursuant to subdivision two or four of section three
hundred eight of this chapter, the filing of proof of service shall not
be required and service shall be deemed complete upon the later of the
delivering or mailing of the subpoena, if made pursuant to subdivision
two of section three hundred eight of this chapter, or upon the later of
the affixing or mailing of the subpoena, if made pursuant to subdivision
four of section three hundred eight of this chapter. Any person
subpoenaed shall be paid or tendered in advance authorized traveling
expenses and one day's witness fee. A copy of any subpoena duces tecum
served in a pending civil judicial proceeding shall also be served, in
the manner set forth in rule twenty-one hundred three of this chapter,
on each party who has appeared in the civil judicial proceeding so that
it is received by such parties promptly after service on the witness and
before the production of books, papers or other things.

Also see CPLR Article 80, Section 8001

§ 8001. Persons subpoenaed; examination before trial; transcripts of
records. (a) Persons subpoenaed. Any person whose attendance is
compelled by a subpoena, whether or not actual testimony is taken, shall
receive for each day's attendance fifteen dollars for attendance fees
and twenty-three cents as travel expenses for each mile to the place of
attendance from the place where he or she was served, and return. There
shall be no mileage fee for travel wholly within a city.
(b) Persons subpoenaed upon an examination before trial. If a witness
who is not a party, or agent or employee of a party, is subpoenaed to
give testimony, or produce books, papers and other things at an
examination before trial, he shall receive an additional three dollars
for each day's attendance.
(c) Transcripts of records. Wherever the preparation of a transcript
of records is required in order to comply with a subpoena, the person
subpoenaed shall receive an additional fee of ten cents per folio upon
demand.


I cannot see photobucket files at work so where and what court is the subpoena ordering him to appear?

 

[LdiJ]

I would suggest that he first contact the attorney and tell him that he has nothing relevant to say and asking for the subpoena to be withdrawn. The attorney might do that if it's clear that he's not going to help the case.

However, if the subpoena is not withdrawn, he needs to go. He can face punishment if he ignores it. Even if it was issued by the attorney, it has the force of law since the attorney is acting as an officer of the court.

I understand what you are saying, but OP did state the following:

I spoke with the Family court clerk, who told me my husband doesn't have to go if he's working. The court has no record of the subpoena.

Therefore it would seem to me that there is a question as to whether or not he is required to appear.

Also, the attorney who issued the subpoena lied:

I also spoke to the petitioner's lawyer, who threatened to jail my husband and lied to me stating that his job has to pay his wages for the court date. After checking with my husband's employer, that only applies to jury duty, not witness testimony

Which would raise an issue in my mind as to the validity of anything the attorney said.

If it were me, I would get a quick consult with an attorney of my own.

 

[liandrajade]

That may not mean anything, the family court clerk may not have been given the copies of the subpoena or proof of service yet. They may have more time to get everything into court.

The lawyer definitely lied about who pays what. Either way, I'd file an objection to being a witness when the witness has no testimony to offer. Unless her husband is blatantly lying to her and us, then he should not have to appear.

 

[acmb05]

You learn something new everyday about New York. Not sure if this applies to the OP cause they did not say where they live or where they have to appear for court.

Fees for Service When served with a Subpoena to Testify or a Subpoena for Records, the witness must be paid a witness fee of $15.00 per day. If the witness is served outside the City of New York s/he shall also be paid 23 cents per mile to the place of attendance, from the place where s/he was served, and return. The fee must be paid a reasonable amount of time before the scheduled date. Nonpayment of the witness fee voids the duty to appear.

 

[You Are Guilty]

Was the subpoena served with a $15 check? No = no attendance.

Was the subpoena signed by an actual judge? No = no contempt of court charge for failure to comply (attorney signature means it is a valid subpoena, but without being so-ordered by the court, there are almost never any actual penalties for non-compliance).

Was subpoena properly served? Not sure from your story. If a party to the case served it, then no. (Arguably, serving the spouse is insufficient as well, although I've often seen judges overlook it.)

As noted above, the technical "proper and legal" response is a motion to quash. But far more often utilized is the "I'm going to ignore the subpoena" defense.

Good luck.

 

[BL]

Forms

http://www.nycourts.gov/forms/familycourt/pdfs/gf-4.pdf

Clerk .

Family Court

Subpoena - A direction of the court, issued by an
attorney or the court, commanding a person to appear in
court.

It appears the attorney signed where the Judge would sign .

Most likely trying to pull a fast one ,and bullying to show.

 

[Zigner]

Forms

http://www.nycourts.gov/forms/familycourt/pdfs/gf-4.pdf

Clerk .

I don't think anybody argued as to whether it was considered a subpoena or not...rather, they were pointing out the penalties for failing to comply.

 

[You Are Guilty]

I am staring at a so-ordered subpoena (with a $15 check, lol) right now. The boilerplate from them all, so-ordered or not, is as follows:

"Failure to comply with this subpoena is punishable as a contempt of court and shall make you liable to the person on whose behalf this subpoena was issued for a penalty not to exceed fifty dollars and all damages sustained by reason of your failure to comply."