Your case can continue. If the other party is not served before the hearing, you can ask for a new date, and a temporary restraining order generally stays in effect until then unless the judge orders otherwise. If your server has tried repeatedly and there is reason to believe the other party is evading service, the judge can allow another way to serve, such as leaving the papers at their home or workplace and mailing a copy, or publishing a summons in a newspaper.

Personal service is the normal rule, and someone else must do it

Normally the notice of hearing, the petition, and any temporary restraining order must be handed to the other party in person no later than five days before the hearing, a deadline the court can shorten (Family Code section 243(a)-(b)).

You cannot serve the papers yourself. The server must be at least 18 and not protected by the order or involved in the case; as the Judicial Council puts it, “you cannot serve your own court papers” (form DV-200-INFO). The civil rule that family cases generally follow is similar: a summons may be served by any person at least 18 who is not a party (Code of Civil Procedure section 414.10; Family Code section 210).

Your options include:

  • a sheriff or marshal, at no charge (DV-200-INFO);
  • a registered process server, which is a business you pay (DV-200-INFO);
  • another adult who is not protected by the order or involved in the case, chosen with safety in mind (DV-200-INFO);
  • a law enforcement officer, who must serve a temporary restraining order when you ask, without a fee to you (Family Code section 6383(a), (b)(3)).

If the papers are not served before the court date

Ask for a new hearing date on form DV-115, which has a box for a protected person who needs more time to get the restrained party personally served; the judge decides on form DV-116. The court must grant a continuance if good cause is shown (Family Code section 245(b)). Any temporary restraining order already in place keeps running until the continued hearing ends, unless the court directs otherwise, and the court can modify or cancel it when it resets the date (Family Code section 245(c)). The extended order lists its new expiration date, and extending it carries no fee (Family Code section 245(d)-(e)). Afterward, the other party must be served with the continuance forms along with your original papers (DV-200-INFO).

When the other party seems to be avoiding service

At the hearing on an order that followed a temporary restraining order, the judge may permit an alternative method of service designed to give reasonable notice, if the judge finds that, after diligent effort, personal service could not be accomplished and that there is reason to believe the other party is evading service (Family Code section 6340(a)(2)(A)). It is the judge’s decision, not the server’s.

The Judicial Council’s guide, DV-205-INFO, says to be ready to show:

  • many attempts, usually three or more, to have someone personally serve the other party, for example at home, at work, or somewhere they often go; and
  • why you believe the other party is avoiding service, with any witnesses at the hearing or in a written statement.

Raise the attempts at your court date; the judge may want them in writing (DV-200-INFO). Practically, ask whoever tries to serve to log each address, date, time, and result. Do not approach or contact the other party yourself, and keep any search for a current address safe, as the guide cautions (DV-205-INFO).

What alternative service can look like

Section 6340’s examples, which are not exclusive, are publication under Code of Civil Procedure section 415.50 standards, and first-class mail to the most current address the court has or delivery at the other party’s home or workplace under Code of Civil Procedure sections 415.20 to 415.40 standards (Family Code section 6340(a)(2)(A)). The judge’s order, form DV-117, offers these options:

  • Substituted service: the server leaves the papers with an adult living at the other party’s home or usual mailing address, or with the apparent person in charge at their workplace, then mails a copy there.
  • Newspaper publication: the summons, form DV-210, runs at least once a week for four weeks in a row in a newspaper the judge names; if an address turns up meanwhile, the papers must be mailed to it.
  • Courthouse posting: the server posts form DV-210 at the courthouse for 28 days in a row and mails the papers to the last known address. The guide limits this option to people who qualify for a fee waiver (DV-205-INFO).

A judge can order more than one method, and email or text alone is unlikely to be enough, because electronic service needs the other person’s agreement (DV-205-INFO). Publication and posting can reveal your name, your request, and possibly what you wrote in it, so the guide suggests talking with an advocate about safety and privacy first (DV-205-INFO).

When alternative service is permitted, the judge must also continue the hearing to allow for it (Family Code section 6340(a)(2)(B)), and DV-117 sets the deadline. This applies to serving the request before the hearing: once a judge has granted an order after hearing on form DV-130, the guide says alternative service is not an option, and you follow the service instructions in that order (DV-205-INFO).

If you are the person being served

  • Staying out of reach does not stop the case. Evasion is one of the findings that allows alternative service (Family Code section 6340(a)(2)(A)), and a temporary order generally stays in effect through a continued hearing (Family Code section 245(c)).
  • The DV-210 summons gives the court date and warns that if you do not go, the judge can grant a restraining order and could grant everything the other person asked for; it also says you can ask the court clerk to see the case file (DV-210).
  • After you are served, the law lets you file a response explaining or denying what the petition alleges (Family Code section 243(c)).
  • If you are already restrained and ask to change or end an order after hearing but the protected person cannot be notified, the court must deny the request without prejudice or continue the hearing, and on good cause may order another method of service reasonably designed to give actual notice (Family Code section 6345(d)).

Next steps

A case that stalls on service is still a live case, whichever side you are on. The Law Offices of David S. Chesley can review where the case stands, including a request for more time or for alternative service. Call (800) 755-5174 to discuss your situation.