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When you file a motion to open a custody, paternity, or child support case, it is your responsibility—not the court’s—to serve notice to the other parent. Given the significance of these proceedings, it’s no surprise that there are strict rules regarding how the other parent is served to ensure full disclosure and preserve their rights.
Service requirements can vary from state to state, and even between counties in the same state. As such, it’s important that you contact a local family law attorney or county court clerk to determine the applicable guidelines. Failure to follow these instructions can result in your case being dismissed, so be sure to get it right the first time or you’ll have to start the process all over again.
What to Include in the Service Packet
Generally speaking, there are two core documents that must be included in the service packet—a copy of the Complaint that you filed, and a copy of the Summons issued by the court. If you filed a Joint Preliminary Injunction, you’ll need include a copy of this document, too. Be sure to keep the original documents and only deliver copies, as you’ll need the originals for your records.
When Should You Serve Child Support Papers?
In most states, you’re required to serve child support papers within 120 days of filing the initial motion or complaint. Failure to properly serve child support papers within this time frame will result in an automatic dismissal. If you cannot find or reach the other parent within this time frame, you can file a declaration with the court and ask the judge to extend the window beyond 120 days.
Who Can Serve Child Support Papers?
Child support papers must be served by a disinterested adult. To qualify, this individual must be at least 18 years old, they cannot be a party to the case, and they should not have any interest in the outcome of the case. As such, family members and significant-others (boyfriends, girlfriends, partners, etc.) cannot serve child support papers. Even a close friend may raise some serious questions from the court, as your friend have ties to your interests.
Instead of using a family member or a friend, it’s best to hire a neutral third-party to serve child support papers. The county sheriff is a great option, or you can pay a private process service to deliver the necessary documents.
Note, however, that this is an area where many county courts tend to differ. Some courts require a licensed, professional process server to serve court documents, while others prefer to have a sheriff handle the matter. In any case, the safest route is to have a professional process service handle the delivery. That said, you should check with a local attorney or the court clerk to confirm this before you hire someone to serve papers for you.
Waiver of Service of Summons and Complaint
In some cases, you may receive permission from the court to personally serve child support documents to the other parent if he or she is willing to waive the formal service requirement and accept the papers from you. To do this, he or she will need to submit a Waiver of Service of Summons and Complaint (or they can sign it and allow you to file it with the court).
How to Serve Child Support Papers
Child support papers must be hand-delivered to the other parent. The location is irrelevant—they can be served at home, at work, or even while they’re out running errands. Once service is complete and the papers are hand-delivered, the server will complete and sign an Affidavit of Service specifying where and when the documents were delivered, and which documents were included in the service packet. You or the server may file this affidavit with the court as proof of service.
What to Do If You Cannot Locate the Other Parent
The court will expect you to do everything in your power to track down the other parent—a process referred to as “due diligence.” Start in your social circles and check with family members, friends, employers, coworkers, and acquaintances. While you’re doing this, search for the other parent online through social media, networking, and email. Check with the Post Office or landlord to see if the other parent left any forwarding information.
While these actions over a period of several months may be sufficient due diligence in some cases, there are a number of counties and states that require in-depth due diligence by a neutral third party. If so, you may need to hire a private investigator or someone who offers “skip trace” services.
In any case, you’ll need to file an Affidavit of Due Diligence when you’ve exhausted all of the search methods at your disposal. Your Affidavit should detail your efforts to find and contact the other parent. If you hired a professional, he or she will complete an Affidavit as well, which you will need to file with the court.
Assuming the judge accepts your Affidavit of Due Diligence, you may be permitted to serve notice to the other parent by newspaper publication. This may sound like an odd practice, but it’s fairly common for legal proceedings, and it demonstrates that you have exhausted every reasonable means to contact the other parent. Even if the other parent never sees the notice in the newspaper, at least your bases are covered.
To ask the Court for permission to serve notice by publication, you’ll need to follow six steps:
- Mail a copy of the child support papers to the other parent’s last known address. Regular mail is fine—there’s no need for certified mail. Fill out a Certificate of Mailing that lists where, when, and to whom you mailed the papers, then file the document with the court
- Complete and file an Affidavit to Serve by Publication and an Affidavit of Due Diligence
- Fill out an Order to Serve by Publication and submit it to the judge.
- Wait for approval. If the judge reviews your affidavits and concurs, he or she will sign the Order to Serve by Publication and mail it to you. If the petition is denied, you’ll receive a memo detailing what’s missing from the petition.
- Contact the local newspaper and arrange for publication. You’ll need to deliver a copy of the Summons and the Order to Serve by Publication, and request that the summons be published once a week for four consecutive weeks.
- File an Affidavit of Publication with the court (unless the newspaper does this for you)
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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