The increasing mobility of individuals in our society has added complexity to the issues of due process. Pioneers took six months to travel across the country on the Oregon Trail in the mid-1800s, risking disease and death along the way. Today, someone can load up their belongings in a U-Haul truck and relocate across the entire country in about a week. This extreme freedom and ease of movement, not just to the next town, or the next county, but to the next time zone, poses a difficult question: how do you serve someone when you don’t know where they are?
Recently, in the State of New York, a family court judge turned to social media and allowed service via posting on Facebook. In this case, a father went to great lengths to locate his ex-wife, all without success. The father did notice, however, that his ex was active on Facebook, posting status updates and even “liking” pictures he and his new wife had posted. The court allowed the father to use Facebook to notify his ex-wife about changes to their child support arrangement, provided that he also mailed a copy of the papers to her last known address.
The goal of service of process is to make sure the defendant knows of the lawsuit. The idea is to tell the defendant a case has been filed so they can appear and defend themselves. In that sense, posting notice on someone’s Facebook wall, or tweeting it at them, may be the most effective way to provide notice in some cases.
The New York court did not go so far as to allow service only by Facebook, nor did it allow such service as anything other than a last resort. General notice requirements first direct that defendants be served in person. If they cannot be found, service on a family member at their home, or mailing to a last known address, or even publishing notice in the newspaper are in many cases acceptable substitutes for actually serving the individual. New York’s law concerning personal service gives its courts broad discretion in selecting any other manner of service. Due to the ex-wife’s activity on Facebook and the father’s inability to locate her by any other means, the judge allowed service by a combination of sending a digital copy to her Facebook account and mailing the documents to her last known address.
New York is not the first court to allow service via Facebook. The federal courts here in Virginia did as well, earlier this year. The United Kingdom allowed such service in 2011, and Australia did so as far back as 2009.
In Virginia’s state courts, however, service via Facebook or other social media will likely require a change to the Virginia Code. Virginia Code § 8.01-296 requires service either by delivering a copy to the individual, or by substituted service on a family or household member at their place of residence or posting a copy on the door of their residence. If the person cannot be found, Virginia Code § 8.01-316 allows parties to publish notice in the newspaper.
Unlike New York, Virginia does not have a “catch-all” provision allowing judges the discretion to select alternate methods of service. So, while service via electronic means is trending upward, at this time it is not a valid substitute to protect the defendant’s right to due process in Virginia state courts.
The family law attorneys at Livesay & Myers are well-versed in the issues surrounding service of process, and can assist you in all aspects of your case, from start to finish. From offices in Fredericksburg, Manassas and Fairfax, we represent clients across Northern Virginia. Contact us to schedule a consultation today.