Guideline 6:08
Where the defendant is not present at the hearing after notice and in-hand service cannot be made because of lack of knowledge of the defendant’s whereabouts, evidence that the defendant is avoiding service, or for any other reason, a judge, upon finding that the appropriate law enforcement agency has made a conscientious and reasonable effort to effect service, but has nevertheless failed, can authorize service by alternative means, in the same manner as described in Guideline 4:08 Alternative Service Must be Authorized by a Judge.
Commentary
Service of the order must be made every time an order issues. Alternative service should only be authorized by the court upon a finding that conscientious and reasonable efforts have been made to serve the defendant in-hand. See Zullo v. Goguen, 423 Mass. 679, 681 (1996). See Guideline 5:05 Failure of the Defendant to Appear and Guideline 6:04 Service of Initial Orders After Notice on the Defendant. The judge must indicate on the order the specific type of alternative service permitted.
Law enforcement should indicate on the Return of Service a request to make alternative service, and, upon finding that there was a conscientious and reasonable effort to serve the defendant, the judge should check the appropriate box on the order and specify how alternative service is to be made. A judge may also authorize alternative service sua sponte, upon the same finding. Alternative service may be authorized to the location most likely to result in actual notice to the defendant, including to the defendant’s last and usual address, work address or another address the defendant is known to frequent (e.g., parents’ home), or by e-mail. The judge must indicate on the order the specific type of alternative service permitted and the method by which alternative service is to be made.
Once the alternative service has been made, the hearing after notice may take place. If, during the hearing, the court becomes aware of better information regarding service, the court should consider whether to reschedule the hearing after notice to attempt this better service. If, however, there is no new information regarding service and an initial order after notice issues, service must be made of that order. When alternative service is used, the plaintiff should be informed that the alternative service may not provide the necessary notice of the order that would be required for successful criminal enforcement of the order if the order were to be violated. See Commentary to Guideline 8:01 Enforcing Violations of Harassment Prevention Orders.
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| Last updated: | October 20, 2025 |
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