Title

Access to Safety and Justice: Service of Process in Domestic Violence Cases

Abstract

Every day, in courthouses across America, numerous domestic violence protection order cases are dismissed for lack of personal service, even though law enforcement is tasked under federal law with effectuating service. Service of process presents substantial access to justice and access to safety issues for domestic violence survivors who seek legal protection, as nearly 40% of petitioners for civil protection orders are unable to achieve personal service on those against whom they seek protection. Research shows that the civil protection order remedy is the most effective legal means for intervening in and eliminating abuse, yet petitioners who fail to achieve personal service—whether because respondents evade service or are impossible to locate yet continue threats and abuse—are left without vitally needed protection. Procedural rules operate to inhibit the legal remedy’s effectiveness and create a two-stage dilemma by: (1) often requiring notice prior to the temporary protection order stage, which can create danger pre-hearing, and (2) requiring personal service for a full protection order when danger may still exist and the respondent may successfully evade service.

In stark contrast, other areas of the law—including antitrust, bankruptcy, domestic and international business, eviction, divorce, and termination of parental rights—readily permit alternative service methods. In seeking to understand the law’s differential treatment of domestic violence, this Article explores the historic origins of the heightened notice and service requirements for domestic violence remedies and the ongoing race, class, and gender implications, including as displayed by the #MeToo movement. In proposing expanded service methods that satisfy due process rights and address procedural justice, the Article examines both the respondent’s interests and the petitioner’s constitutionally protected right to a hearing on the merits, which is not normally acknowledged. States need not wait for tragedy before making the protection order remedy more accessible, as has been the pattern for several states that have adopted alternative service means for domestic violence remedies.

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