How Custody Papers Are Served in Virginia

The summons

After a petition is filed, the court directs the issuance of summonses to at least one parent, guardian, legal custodian, or other person standing in loco parentis, and to other persons who appear to be proper or necessary parties (§ 16.1-263(A)). Where the custodian summoned is not a parent, a parent must also be served. In custody cases the court may summon the child for a hearing on its own motion or at a party’s request.

The summons requires the person to appear personally at the time set, a copy of the petition goes with it for the initial proceedings, and it advises the parties of their right to counsel under § 16.1-266 (§ 16.1-263(A) and (B)). The J&DR District Court Manual says the clerk issues the summons with copies of the petition and the DC-620 affidavit.

How a party is served

• Inside Virginia. In person, or by substituted service under § 8.01-296(2) (§ 16.1-264(A)). Substituted service means delivering a copy at the person’s usual place of abode to a family member, not a temporary sojourner or guest, who is 16 or older, after explaining its purport. If that cannot be done, a copy may be posted on the front door or main entrance of the abode, and § 8.01-296(2)(b) adds a mailing and certificate requirement at least 10 days before a default judgment can be entered.
• Outside Virginia. If the party can be found or the address is known or can be found with reasonable diligence, by delivering a copy personally or by certified mail, return receipt requested (§ 16.1-264(A)).
• By publication. If after reasonable effort a party other than the subject of the petition cannot be found or the address cannot be learned, the court may order service by publication under §§ 8.01-316 and 8.01-317 (§ 16.1-264(A)). An order of publication rests on an affidavit stating a ground in § 8.01-316, such as that diligence has been used without effect to locate the party, and the last known post office address.

Who serves, and proof of service

Service is made under the direction of the court by sheriffs, their deputies, and police officers, or by any other suitable person the court designates (§ 16.1-264(B)). The general statute on who may serve process, § 8.01-293(A), lists the sheriff, any person 18 or older who is not a party or otherwise interested in the case, and a private process server. Ask the clerk how your court handles a summons you want served by someone other than the sheriff.

An officer’s return is sufficient without oath. Anyone else who delivers the summons proves service by affidavit (§ 16.1-264(C)).

Waiving service

A party other than the child may waive service of the summons by written stipulation or by voluntarily appearing at the hearing (§ 16.1-263(D)).

Papers filed after the petition

Pleadings that do not have to be served with process are served on each counsel of record, which includes a party appearing pro se (Rule 8:2), by delivering, sending by commercial delivery service, faxing, or mailing a copy on or before the day of filing. The paper must end with an acceptance of service or a certificate showing the date of delivery, dispatch, transmission, or mailing (Rule 8:8(e)).

A motion to change an order is handled differently: the reverse side of the DC-630 Motion to Amend or Review Order holds the clerk’s notice of the hearing date and the return for serving it on the other party.

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• Va. Code § 16.1-263, summonses
• Va. Code § 16.1-264, service of summons; proof of service
• Va. Code § 8.01-296, service upon natural persons
• Va. Code § 8.01-293, who may serve process
• Va. Code § 8.01-316, service by publication
• Rules of Supreme Court of Virginia, Rules 8:2 and 8:8 (full rules PDF)
• Form DC-630, Motion to Amend or Review Order
• J&DR District Court Manual, Chapter 6 (custody case initiation)