Brush, CO asked in Family Law and Child Custody for Colorado

Q: When having a person served papers do you have tp use a process server or sheriff.

My ex tried hand delivering papers to restrict my parenting time

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2 Lawyer Answers
Brock Richard Wood
Brock Richard Wood
Answered
  • Divorce Lawyer
  • Denver, CO
  • Licensed in Colorado

A: When serving process on a person in Colorado under Colorado Rule of Civil Procedure (C.R.C.P.) 4, any person who is a US citizen 18 years of age or older can be the process server. That person can be a private process server, a Sheriff's deputy, or even a friend or relative of the party to the case who wants service of process accomplished. After serving process, the person serving process then fills out an "affidavit of service" or "return of service" document that a party to the case files with the court. Service of process means the process server gave you legal "notice" of the case by putting the papers in your hands or by giving the papers to someone else who is authorized to receive service of process for you (such as a receptionist at a work place), or by leaving the papers in your presence.

There is one person who CANNOT be the process server: The process server CANNOT be a party to the case. Your ex would be a party to the case (a divorce case, I assume). Your ex cannot serve papers on you if the papers require "personal service of process".

Now, the above being said, you said your ex was hand-delivering papers to "restrict your parenting time". Did your ex file a motion to restrict parenting time under Colorado Revised Statutes (C.R.S.) Section 14-10-129 in a case that was already filed? If so, your ex simply has to provide you with a copy of the motion that was filed with the court. Your ex can do so by hand delivering the papers to you. Your ex can also do so by sending the papers by US Mail, or even by faxing the papers to you. There is no "personal service of process" requirement, where a person other than your ex has to put the papers in your hands and then file an affidavit of service with Court, if the papers are just a motion to restrict parenting time filed in a case that has already been opened.

In a divorce or child custody case, "personal service of process" is a special kind of serving of papers that is required, usually, only for the initial petition for divorce or child custody OR if someone files a motion for contempt of court. Other motions and filings, after the case has started, generally do not require "personal service of process".

In general, it is best to not argue in front of the judge about a service of process issue if you have ACTUAL notice of the papers the other side filed with the court. The judge will think you are more concerned with technical issues instead of the child's best interests and safety. If your ex handed you copies of papers your ex said were filed, even if your ex had no authority to hand them to you, go to the court and find out what the deadlines are in the case and what court orders have been issued in response to your ex's filings.

In general, if the other party filed a motion to restrict parenting time, a hearing will be held within 14 days of the date the other party filed the motion. See Colorado Revised Statutes Section 14-10-129. A motion to restrict parenting time is a "fast track" court process because a parent's right to contact with the child are requested to be cut off. Find out what has been filed and what the allegations are and what the next court date is as soon as possible.

Michael Joseph Larranaga
Michael Joseph Larranaga PRO label
Answered
  • Divorce Lawyer
  • Parker, CO
  • Licensed in Colorado

A: No. Process service is governed by the Colorado Rules of Civil Procedure for cases filed in CO state court. While a sheriff is an option, CO permits non-parties to complete service provided they comply with the requirements.

Parties typically are not allowed to serve items that require personal service themselves but the rules vary. For example, a party can mail certain documents in certain situations. Personal service is not always required or there may be exceptions. You really need to familiarize yourself with the rules of civil procedure to know what is and is not allowed. What is allowed under C.R.C.P. 4 is very different from C.R.C.P. 5.

Please be aware that any answer is based on all the events occurring in Colorado. Further, please be aware that this is not legal advice. This is generic information intended to help the reader develop questions to ask an attorney when they are ready. Each case is different. Anyone reading this answer in need of legal advice should contact an attorney.

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