Step 4 - Service of process
The law requires that the abuser be given formal notice that you have filed for a restraining order. Your forms can be personally served by anyone over 18 years of age who is not involved in your case,1 such as a friend, a relative, law enforcement or a professional process server. You cannot be the one to give these forms to the abuser. (If you want the sheriff to serve the papers, go to the CA Sheriff Departments to locate a sheriff near you.) The court will decide how many days before the court date the abuser has to be served.
You do not have to pay to have the court forms served on the abuser if law enforcement serves the papers. The sheriff or marshal can serve domestic violence restraining orders for free2 but your county may require that you fill out a “fee waiver application” first. If you hire a professional process server to serve the abuser, you must pay him/her on your own.
If you were not able to have the abuser served before the court date, you can ask the judge for a new hearing date and another temporary restraining order. There is a specific form that will need to be filled out to request that the hearing is continued and it must be done before the hearing. You can go to the CA Courts website for more information and links to all of these forms or ask the court clerk. If the judge believes that you made a “diligent effort” to accomplish personal service, the judge can allow an alternative method of service if there is reason to believe that the abuser is purposefully avoiding (evading) service. Alternative methods of service include, but are not limited to:
- service by publication, which is when the summons is published in a newspaper that is most likely to give actual notice to the party to be served and a copy is mailed to the abuser’s address (if known)
- service by mail, return receipt requested, to the most current address for the abuser; or
- delivering a copy of the court papers to the respondent’s home or place of employment in care of someone who is at least 18 years old and then mailing a copy to the address where it was delivered.3
Whoever serves the court papers on the abuser will have to fill out a proof of service form. This form will let the judge know that the abuser was served with the forms. Make sure that you get this form back after it is filled out because it is your responsibility to file it in court. Before filing the proof of service form in court, make five copies of it – then bring the original and five copies to court. The clerk will keep the original and give you back the copies stamped “Filed.” Take a copy to your hearing and attach another copy to the restraining order that you carry with you as proof that it was served.2
1 Cal.C.C.P. § 414.10
2 See California Courts Self-Help Center
3 Cal. Fam. Code § 6340(a)(2)(A); Cal. C.C.P. §§ 415.50(b); 415.20