The Difference Between Common Law Service and Constructive Service by Administrative Courts: A Father’s Fight Against Void Judgments

Introduction

Imagine waking up one day to find that your wages are being garnished, your property seized, and your children taken from you—all without a single piece of mail or personal service ever reaching your hands. That’s the harsh reality many fathers face when state agencies like Child Support Services rush to obtain restraining orders or default judgments using “constructive service” by publication. But is that legal? Is that constitutional? This article explores the critical difference between common law or constitutional service and constructive service, and explains why shortcuts taken by administrative courts often result in void judgments that can and should be challenged.

What is Common Law (Constitutional) Service?

Under traditional principles of due process, a person must be properly notified before any court can take legal action against them. This usually means personal service: handing a summons and complaint directly to the person, or sending it via certified mail with return receipt.

This principle is rooted in common law and enshrined in the 14th Amendment, which guarantees that no one shall be “deprived of life, liberty, or property without due process of law.”

What is Constructive Service by Publication?

Constructive service allows courts to proceed when a defendant can’t be found. Rather than delivering papers to the person, the court allows the plaintiff to publish a legal notice in a local newspaper. But because this is a last resort, states require strict adherence to rules before publication is allowed.

North Carolina, for example, recognizes that service by publication “is in derogation of the common law,” so courts must interpret statutes authorizing it strictly. As held in Sink v. Easter, 284 N.C. 555, 560 (1974), if any of the statutory requirements are not met, service is defective. Since service of process is jurisdictional, any resulting judgment is void. (Fountain v. Patrick, 44 N.C. App. 584, 586 (1980)).

Massachusetts courts agree. In Murray v. Murray, 2006 Mass. App. Div. 25, the court held that plaintiffs must show they made reasonable efforts to locate the defendant before turning to service by publication. A mere statement isn’t enough; there must be a documented diligent search.

How State Agencies Abuse Constructive Service

Despite these clear legal standards, administrative agencies often abuse constructive service to expedite child support cases. In my own case—now under review in both the Federal District Court in Massachusetts and the U.S. First Circuit Court of Appeals (Case No. 25-1095)—the Massachusetts Child Support Enforcement Division issued a restraining order, removed custody, and placed an Income Withholding Order (IWO) against me without personal service or notice.

They claimed I had been served by publication. But the record shows:

1. No Affidavit of Diligent Search was ever filed.

2. No Proof of Publication was entered into the docket.

3. These actions were taken before I ever had a chance to respond or appear.

Even after I appeared under emotional duress (only to see my children), the system used that coerced appearance to justify default judgments and ongoing enforcement actions.

The Legal Fallout

Because service was never completed properly, the entire chain of court orders is jurisdictionally void. That means every enforcement action taken after—garnishments, suspensions, and even the original restraining order—can be challenged as unconstitutional seizures under the Fourth and Fourteenth Amendments.

As my filings in the First Circuit emphasize, the defendants have not disputed these facts. They have not produced a valid affidavit of service, nor have they rebutted the claim that no notice was ever provided. In their silence, they confirm their reliance on procedural shortcuts rather than due process.

Why This Matters for All Fathers

If this can happen to me, it can happen to any parent. Constructive service is supposed to be a rare exception, not a routine administrative tool. When agencies fail to meet the strict legal standards, they undermine constitutional rights, break apart families, and create a system where the accused has no chance to respond until it’s too late.

What You Can Do

If you believe you were served improperly:

• Request copies of the service documents and proof of publication.
• Check for an affidavit of diligent search.
• If it’s missing or incomplete, consult legal counsel to challenge the judgment as void.

You may also have grounds for a federal civil rights lawsuit under 42 U.S.C. § 1983, especially if the enforcement continues without proper service.