Proof of service takes on several different forms in family court. Its importance begins with the word “service.” In this country, you cannot take someone to court without providing them notice of two important things: 1, that a court action has been commenced involving that party; and 2, what that action involves.
It makes sense. No one can take to you to court without telling you about it. Otherwise, they could appear at the hearing, tell only their part of the story, and get everything they want from the judge. Thus, individuals are required to notify the other party about the court action, and what it involves. When applicable, the notice must also make clear the date of the hearing and what the other individual must do to respond to the action.
The act of providing such notice is called “service.” When you go before a judge in court, the first thing the judge will do is make sure that the necessary parties have been served. Without such service, the judge will not – and cannot – proceed with the matter.
How does a judge know the other party was served? That’s where the Proof of Service comes in. The proof of service is the swearing by an individual under oath and penalty of perjury that he or she served the other party with the necessary notice.
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Who may sign the Proof of Service?
Under California Code of Civil Procedure section 414.10, service “may be made by any person not a party to the proceeding who is at least 18 years of age.” That means if this is your case, you cannot be the person to perform the service. Most people ask a friend, family member, or co-worker to serve the papers. You can also hire a professional process server, but it will cost you, usually around $100.
The law prevents you from serving the papers because of the likelihood an interested party might be tempted to lie and say he or she served the papers, when they actually did not.
For the same reason, while it is not prohibited, the court typically discourages use of children (even those over the age of 18), or those who might have an interest in the case, such as a new spouse.
Once the service has been made, the server signs the proof of service and then anybody can file it at the court house.
Which Proof of Service Form Do I Use?
When you are initiating a family court action, you must use FL-115 Proof of Service of Summons. Check off each form you are serving on the other party. Be sure to include where and when the party was served, how the party was served, and who served it. That individual must then sign the form before it is filed.
After the initial service, many documents may be served by mail, such as a request for child custody or support. In that case, be sure to use the FL-335 Proof of Service by Mail. Beware that even though service is by mail, you still cannot be the individual to serve the documents. You must still abide by the law concerning persons who can serve documents.
Even after the initiation of a family law action, it is still sometimes necessary to serve documents in person. In that case, use FL-330 Proof of Personal Service. On this document, you will write in all the forms you served the other party.
Finally, in a Domestic Violence matter, the petition for a domestic violence restraining order includes its own proof of service form, called DV-200 Proof of Personal Service. In Yolo County, Sacramento County, and Placer County, you can request that the sheriff serve the restraining order, in order to avoid conflict.
Do Not Forget the Proof of Service
In some cases, there may be no more important document than the proof of service. In a Divorce action, the date of service starts the clock on your divorce, which cannot be completed any earlier than 6 months and a day from the date of service. In a domestic violence action, you cannot obtain a permanent restraining order after hearing until the other party has been served. If you request a hearing to decide child custody, the court will not hear your matter until you have a proof of service in hand.
So do not forget this important step. In some cases, it’s the most important step of all.
Contact us today to speak with an attorney to learn more!
Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.
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