In Matter of Odunbaku v Odunbaku (No. 183), the Court of Appeals was asked to decide whether a represented mother’s objections to a Family Court support order were timely made when they were served 41 days after the Family Court clerk mailed the mother a copy of the order directly, but failed to mail a copy to her counsel. Family Court Act 439(e) requires any objections to a support order to be made within 35 days “after mailing of the order to such party or parties.” The Family Court rejected the mother’s objections as untimely under section 439(e) and held that nothing in the Family Court Act required service of the support order on the mother’s counsel, and the Appellate Division, Second Department affirmed (131 AD3d 617 [2d Dept 2015]).
The Court of Appeals, however, disagreed. Extensively discussing its holding in Matter of Bianca v Frank (43 NY2d 168 ), where the Court held that procedural dictates and policy considerations of fundamental fairness require the conclusion that the time to challenge or appeal an order cannot begin to run against a represented party until the party’s counsel is served with the order, the Court saw no reason not to apply the same holding under the Family Court Act. Indeed, the Court noted, CPLR 2103(b) specifically requires all papers to be served on counsel where the party is represented. As the Court cautioned, “mailing court orders to the parties without also mailing the orders to their attorneys impairs effective access to justice on the part of vulnerable individuals and undermines their representation. Indeed, the practice deprives the party of some of the principal benefits of being represented by an attorney.” (Opn, at 8). Therefore, the Court held, the 35 days to serve objections to a Family Court support order does not begin to run until the party’s counsel is served with the order.
A copy of the Court of Appeals decision can be found here.