General Provisions

215

Rule 103: Service of Process and Summons.

(a)   General Provisions.  After the petition has been filed the clerk shall schedule a time for a hearing. The clerk shall, without delay, issue the summonses to the parties, including a child alleged to be delinquent or unruly, requiring them to appear before the court to answer the allegations of the petition. The summons shall also be directed to the child alleged to be dependent and neglected and 14 or more years of age. A copy of the petition shall accompany the summons unless the summons is served by publication in which case the published summons shall indicate the general nature of the allegations and where a copy of the petition can be obtained.

(b)  Order to Appear and Bring Child to Hearing. The court may endorse upon the summons an order directing the parents, guardian or other custodian of the child to appear personally at the hearing and directing the person having custody, possession or control of the child to bring the child to the hearing.

(c)    Service of Summons.

(1)  With the exception of an emergency hearing, preliminary hearing, or detention hearing, if a party to be served with a summons is within this state and can be found, the summons shall be served upon the party personally at least 3 days before the hearing. If the party is within this state and cannot be found, but the party's address is known or can with reasonable diligence be ascertained, the summons may be served upon the party by mailing a copy by registered or certified mail at least 5 days before the hearing. If the party is without this state but can be found or the party's address ascertained, service of the summons may be made either by delivering a copy to the party personally or by mailing a copy to the party by registered or certified mail at least 5 days before the hearing. Service by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal acceptance by the party. If service by mail is unsuccessful, it may be tried again or other methods authorized by these rules or by statute may be used. If a party refuses to accept delivery by mail and it is so stated in the return receipt of the United States Postal Service, the written return receipt if returned and filed in the action shall be deemed an actual and valid service of the summons, process, or notice. Service by mail is complete upon mailing.

(2)  If the child has been removed from the home, an attempt must be made to serve the summons and petition prior to an emergency hearing, preliminary hearing, or detention hearing. If service cannot be achieved prior to the hearing, the parties shall be notified as soon as possible of the date, time and place of the hearing, the child’s custody status and the reasons for the child’s removal.

(3)  If after reasonable effort the party cannot be found and the party's mailing address cannot be ascertained, the court may order service of the summons upon the party by publication in accordance with T.C.A. §§ 21-1-203 and 204. The hearing shall not be earlier than 5 days after the date of the last publication.

(4)  Service of the summons may be made by any suitable person who is not a party and is not less than 18 years of age.

(5)  The court may authorize the payment of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing, as provided by law.

(6)  Service of a summons upon a party in a foreign country shall be pursuant to the Tennessee Rules of Civil Procedure Rule 4A - Service Upon Defendant In a Foreign Country.

(d) Waiver of Service.  A party other than a child may waive service of summons by written stipulation or voluntary appearance. A delinquent or unruly child may waive service of summons in accordance with Rule 205.

Advisory Commission Comments.

The 2016 amendment adds a distinction in subdivision (c) between the requirements for emergency, preliminary and detention hearings and the requirements for other types of hearings. There may be a circumstance where a party has been notified of the hearing but has not been served. This does not relieve the petitioner of the obligation to effect service.

The time to serve a summons is excluded from Rule 110 regarding the calculation and extension of time. See Rule 201 regarding the initiation of cases in delinquent and unruly proceedings and Rule 301 for dependent and neglect proceedings.

If a party appears voluntarily at a hearing and has not been served, the court should provide the party with a copy of the petition and memorialize the service in an order or return.

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