How to Go About Subpoenaing Someone to Family Court: A How-to Guide

All You Need to Know About Subpoenas in Family Court

A subpoena is essentially a "command to the witness" to appear as you request. In other words, it is an order from the court ordering someone to appear in family court or other proceedings to provide testimony or produce documents. When ordering someone to appear in court, your subpoena is commanding them to attend and testify in front of a judge and other parties. The person that you are issuing the subpoena to is known as the "deponent".
Subpoenas can be issued to require the deponent to do a number of different things, including:
Subpoenas are used in family court cases for many reasons, such as:
For example, if one spouse in an equitable distribution case has been unwilling to provide the other with his/her financial information (e.g. , tax returns, bank statements, pay stubs, etc.), then the other spouse with a need for that information could issue a subpoena so that it could be electronically delivered to the other spouse’s counsel. This way, the other spouse would not have to be involved in the process, but in addition, the requesting spouse would also have the right to contact the deponent if necessary and ask any follow-up questions if needed. The subpoena is essentially just to make sure that the deponent shows up, not only to electronically deliver the copies of the documents, but also to testify as to the contents of the documents that he/she produced if necessary.

Three Forms of Subpoena in the Family Court

The types of subpoenas you can use in family court include a subpoena for documents and a subpoena to testify. A subpoena is a tool or a court order that you can make someone come to court, or bring documents to court that are important to your case.
A subpoena for documents can be sent before the start of a case, or at the same time as a Summons. A subpoena for documents should be prepared if there are any bank accounts, writings, or property that may be the subject matter of the case, such as an employment pension, or husband & wife tax returns. This way, you can obtain copies of such documents before the trial of the case.
A subpoena to testify is more common after a case has started. Such time-testifying subpoenas send the witness a notice to appear on the date of the trial. If that witness fails to appear as ordered, the person can be held in contempt of court.

Who Can Issue a Subpoena?

Only certain individuals are eligible to issue a subpoena. For any family court case as outlined in California Code of Civil Procedure section 1985 the subpoena can only be issued by one of the following: In addition to being a party or an attorney of record, the subpoena must also be signed by such party or attorney of record. A subpoena duces tecum adds an additional requirement to issue such a subpoena. The subpoena must be issued by a judge or an attorney of record. An issuing attorney who is not a commissioner or a judge shall include with the subpoena his or her address and telephone number. Once the family court order has been entered, you can be sure that it also qualifies as an enforceable order of the Court and any information requested pursuant to a subpoena may be had. If for some reason there is no order of the Court (e.g. the matter was settled short of an evidentiary hearing), then this specific form of relief must also be obtained prior to issuance of the subpoena.

Steps in Subpoenaing Someone

The subpoena process for the family court begins with the notice of motion. The notice of motion is filed with the court. Typically, a pleadings bundle is created, which consists of: notice of motion, affidavit, subpoena (or other Notice), and proposed order. The subpoena needs to be prepared and issued at the same time, in the event the court grants the order.
After preparation and issuance of the subpoena, the subpoena needs to be served on the person, entity or government department. A proof of service is then prepared, which witnesses the actual service of the subpoena, or records the failure of service.
The next step in the process can vary. In some circumstances, the need is simply to get the information as quickly as possible. In such case, the judge would sign the subpoena/order after approval.
In other circumstance, the parties or respondent may require notice. In such case, on the return date, the respondent will have a chance to raise any issues. If it is not apparent to the court that the importance of the subpoena outweighs the privacy interest of the person from whom the information is sought, the court may require another hearing or even the calling of the subpoenaed witness. This occurs in rare circumstances.

Who Should Serve A Subpoena

Serving a subpoena is only half of the equation. Once the subpoena has been drafted, it must be served. There are specific rules regarding the manner of service, who may serve the subpoena, and how service must be confirmed to ensure that the subpoena will be legally enforced.
An attorney or partner in a law firm may serve a subpoena issued in a case in which the attorney or firm is involved. In other words, you do not have to have a process server or sheriff serve your subpoena. However, if you wish to have non-parties serve your subpoenas, you should pay attention: the rules are extremely specific about who may serve the subpoena in a family court case, and the rules for serving in a District or Supreme Court case differ from those for serving in a family court case.
What if you want to serve an out-of-state witness with a subpoena in a family court case? You really have two options. The easiest option is to have the clerk of the family court send a commission to the out-of-state court clerk for service on the witness. For more on this process, check out our post on "Out-of-State Subpoenas: How to Get Them and How to Serve Them in New York." The second method could lead to more problems (and is neither easy nor inexpensive) but it is the only option if you do not have a family court case. In any other type of case, you can serve an out-of-state subpoena in accordance with the Uniform Interstate Depositions and Discovery Act (UIDDA). The UIDDA basically creates a broad rule for obtaining a subpoena from an out-of-state court to serve on an out-of-state witness. Unfortunately, the UIDDA does not apply in family court and (for better or worse) the act most similar to the UIDDA in the family courts is the Uniform Enforcement of Foreign Judgments Act (UEFJA). Since this is not a discovery act, motions and emergency motions have to be made:
The UEFJA does streamline out-of-state action, though. How can you get your subpoena to the out-of-state court? Easy-you can forward a copy of the subpoena certified by the out-of-state court clerk to the out-of-state clerk in the county in which the subpoena will be served . Once the subpoena is issued, you can then enforce it just like any other subpoena in New York.
When in doubt about whether or not you have to file a motion for a commission or an application under UEFJA, your best bet is to check out DCJS’s publication on Pre-Notification Subpoenas and Post-Notification Subpoenas or to stop by your county clerk’s office and ask. They are used to fielding these questions.
In order for a subpoena to be legally enforced, it has to be properly served and there must be proof of service on file. Service is complete when the subpoena has been delivered to the party to whom it is directed so that the individual knows the terms of the subpoena. There are a number of ways to serve a subpoena on an individual or a business entity:
If you have an address under seal for the witness, you can serve the subpoena at that address. What about electronic service? Good question! Electronic service is limited to individuals who are attorneys or are represented by an attorney in the action. Those individuals can be served via electronic mail in accordance with N.Y.C.R.R. § 202.5-b(b). In addition, this additional rule mandates that service via email can only occur when service cannot be made by other means reasonably calculated to permit the party to respond. When the electronic mail address is provided by the party or the party’s attorney (or made available through the course of litigation), the responding party or attorney agrees to accept service via email at that address for the duration of the case.
In the case of electronic service on unrepresented parties, all of the requirements for service of a subpoena under CPLR § 308 apply, except that electronic service cannot be made by using a form of electronic communication unknown to the party or attorney upon whom service is made. Once you have properly served the subpoena on the party or deponent, you may not need to do anything else for a while. However, if the individual or party seeks to void the subpoena, he or she can move the court by order to show cause or notice of motion. The grounds for doing so are that he or she has been improperly served with the subpoena or that the subpoena is overbroad or burdensome.

What Happens If Someone Ignores A Subpoena

If you ignore the subpoena or fail to comply, you are subject to being found in contempt of court for failing to obey an order of the court. A judge may hold you in contempt on a motion made on notice by the party who served the subpoena (in which case you are heard by a different judge) or can find you in contempt on its own motion (assuming the judge is satisfied that you did not comply with the subpoena). A judge may sentence you to jail for contempt. In this day and age, incarceration is unlikely in a family court case. However, it certainly is not unheard of, especially in cases involving domestic violence, child safety or abuse, or repeated abusive and contemptuous behavior. The most likely resolution of a contempt motion will be the imposition of a fine or monetary sanction and in rare cases, the issuance of an order of protection. If a judge finds you in contempt upon a motion for which you were not heard (on the papers), the judge is limited by a statute to issuing a fine of up to $500. The judge cannot issue an order of protection under those circumstances. An order of protection can only be granted following a hearing in which both parties were given an opportunity to be heard (even if one of the parties fails to appear).

Help from a Lawyer When Issuing A Subpoena

Subpoenas of all types are a highly technical matter. You must ensure that information is properly protected and correctly acquired from a person without violating either privacy, due process, or criminal procedure. Additionally, you must ensure that your subpoena is worded appropriately, in order to obtain the desired information. To do this, you must know what you need in order to obtain the most useful information possible. For this reason, it is highly recommended that you seek the assistance of a qualified legal professional to ensure that you issue a subpoena that is correct and appropriate for the case at hand. This is particularly true for family law matters , as there are many additional considerations you must make when dealing with a family law matter, such as how to deal with children of the marriage, minimizing emotional trauma to the parties involved, and how best to control your counsel to ensure a timely and cost-efficient process. While it is possible to go forward with the process without an attorney, the risk of further complicating your matter is extremely high when dealing with subpoenas. You would be wise to retain help from a qualified attorney.