FedEx no substitute for certified mail

Oops, silly me! Thinking Federal Express was just as good as, maybe even better than, registered or certified mail.

Rena Lindevaldsen represents the biological mother in the celebrated custody case of Miller-Jenkins v. Miller-Jenkins. The Virginia Court of Appeals had ruled that Vermont courts have jurisdiction over the custody of the child the mother delivered when she was in a civil union with another woman.

Lindevaldsen knew that she had 30 days from the denial of her petition for a rehearing in the Court of Appeals to file her petition for appeal with the Supreme Court of Virginia. And since the 30th day was a Sunday and the next day was President’s Day, she called the clerk’s office to make sure that mailing the petition on Tuesday would be all right.

But she didn’t think to ask, nor was she told, about any requirement for the method of delivery. Rule 5:5 specifies certified or registered mail, but she sent the petition by Federal Express the evening of the deadline day. When it arrived the next morning, the clerk’s office called to tell her that it was late because it was not sent by registered or certified mail.

Lindevaldsen’s motion asking the court to consider the petition timely filed is pending.

The relief an advisory committee on appellate rules has in mind may be a little late. Last year, the committee recommended proposals adding Federal Express, UPS and other commercial carriers to the list of acceptable forms of delivery. However, approval of the proposals by the Supreme Court probably is many months away.