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Rule 40. Summons

Arizona Revised Statutes AnnotatedRules of Family Law ProcedureEffective: January 1, 2023

Arizona Revised Statutes Annotated
Rules of Family Law Procedure (Refs & Annos)
Part IV. Service (Refs & Annos)
Effective: January 1, 2023
17B A.R.S. Rules Fam.Law Proc., Rule 40
Rule 40. Summons
Currentness
(a) Issuance; Service.
(1) Issuance. The party filing one of the petitions described in Rule 23(b)(1) must present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the filing party for service. A summons, or a copy of the summons if addressed to multiple parties, must be issued for each party to be served.
(2) Service. A summons must be served with a copy of the petition. Service must be completed as required by this rule or Rule 41, as applicable.
(b) Contents.
(1) What a Summons Must Include. A summons must:
(A) name the court and the parties;
(B) be directed to the party to be served;
(C) state the name and address of the attorney of the party serving the summons or, if self-represented, the party's name and address;
(D) state the time within which the respondent must appear and respond;
(E) notify the party to be served that a failure to appear and respond will result in a default judgment against that party for the relief demanded in the pleading;
(F) state that “requests for reasonable accommodation for persons with disabilities must be made to the court by parties at least 3 working days in advance of a scheduled court proceeding”;
(G) be signed by the clerk; and
(H) bear the court's seal.
(2) Actions for Annulment, Dissolution of Marriage, or Legal Separation. A summons in an action for annulment, dissolution, or legal separation that is filed in a county with an established conciliation court must also contain a statement that either spouse may file a petition that requests the conciliation court's assistance in preserving the marriage or resolving marital controversies.
(c) Replacement Summons. If a summons is returned without being served, or if it has been lost, a party may present a replacement summons for the clerk to issue in the same form as the original. A replacement summons must be issued and served within the time prescribed by Rule 40(i) for service of the original summons.
(d) Who May Serve a Summons.
(1) Generally. Service of a summons must be made by a sheriff, a sheriff's deputy, a constable, a constable's deputy, a private process server certified under Arizona Code of Judicial Administration § 7-204, or another person specially appointed by the court under subpart (d)(2). Service may also be made as authorized under Rule 41.
(2) Special Appointment.
(A) Qualifications. A specially appointed person must be at least 21 years of age and must not be a party, an attorney, or an employee of an attorney in the action in which process is to be served.
(B) Procedure for Appointment. A party may request a special appointment to serve process by filing a motion with the presiding superior court judge in the county where the action is pending. The motion must be accompanied by a proposed order. If the proposed order is signed, no minute entry will issue. Special appointments should be granted freely, are valid only for the cause specified in the motion, and do not constitute an appointment as a certified private process server.
(e) Service of Summons in Title IV-D Cases. If certified under Rule 40(d), a Field Locate Investigator employed by the Department of Economic Security may complete service in the manner set forth in Rule 41(c) in any action initiated by the State for the determination of paternity, or for the establishment, modification, or enforcement of an order of support.
(f) Accepting Service; Voluntary Appearance. A party may accept service. A party also may voluntarily appear without being served.
(1) Accepting Service. A party subject to service under this rule, Rule 41, or Rule 91 may accept service. The acceptance of service must be in writing, signed by that party or that party's authorized agent or attorney and be filed in the action. A party who accepts service must file and serve a responsive pleading within the time provided in Rule 24.1.
(A) The petitioner must include with the documents provided to the respondent a form for acceptance of service. The form must list the documents that are provided with the acceptance.
(B) Petitioner must mail, including a self-addressed stamped envelope, or deliver the petition and other documents to the respondent. If the respondent agrees to sign an acceptance of service, the acceptance must be signed before a notarial officer.
(C) The respondent may file the acceptance of service with the court or return it to the petitioner, who must file the acceptance with the clerk to complete service.
(D) The respondent's signature is not an admission of the allegations of the petition.
(2) Voluntary Appearance.
(A) In Open Court. A party on whom service is required may, in person or by an attorney, enter an appearance in open court. The appearance must be noted by the clerk on the docket and entered in the minutes.
(B) By Responsive Pleading. The filing of a response to a pleading allowed under Rule 23 constitutes an appearance by the party.
(3) Effect. Acceptance or appearance under subparts (f)(1) or (f)(2) have the same force and effect as if a summons had been issued and served.
(g) Proof of Service.
(1) Timing. If service is not accepted, and no voluntary appearance is made, then the person effecting service must file proof that the party was served. Proof of service should be made by the date that the served party must respond to the summons and petition.
(2) Service by the Sheriff. If a summons is served by a sheriff or deputy sheriff, the return of service must be officially marked on or attached to the proof of service and promptly filed with the court.
(3) Service by Others. If served by a person other than a sheriff or deputy sheriff, the return of service must be promptly filed with the court and be accompanied by an affidavit establishing proof of service. If the server is a registered private process server, the affidavit must clearly identify the county in which the server is registered.
(4) Service by Mail or National Courier Service. Proof of service by mail or by national courier service must be filed as provided in Rule 41(d).
(5) Service by Publication. If the summons is served by publication, the return of the person making such service must be made as provided in Rules 41(m)
(6) Service Outside the United States. Service outside the United States must be proved under Rule 41(h) as provided in the applicable treaty or convention; or by a receipt signed by the addressee, or other evidence satisfying the court that the summons and complaint were delivered to the addressee.
(7) Validity of Service. Failure to file proof of service does not affect the validity of service.
(h) Amending Process or Proof of Service. The court may permit process or proof of service to be amended.
(i) Time Limit for Service. If a respondent is not served with process within 120 days after the petition is filed, the court--on motion, or on its own after notice to the petitioner--must dismiss the action without prejudice against that respondent or order that service be made within a specified time. But if the petitioner shows good cause for the failure, the court must extend the time for service for an appropriate period. Rule 40(i) does not apply to service in a foreign country under Rules 41(h), or to the service of a paternity action described in section (j).
(j) Time Limit for Service in Paternity Actions Involving Adoption. A potential father who has been served with notice of a planned adoption under A.R.S. § 8-106(G) must file with the court and serve on the mother--or an attorney or agency that is licensed in Arizona and is representing the mother--a copy of the verified petition to establish paternity and summons not later than 30 days after the notice of the planned adoption is served. The court must dismiss any proceeding that is barred under A.R.S. § 8-106(J).

Credits

Added Aug. 30, 2018, effective Jan. 1, 2019. Amended on an emergency basis, effective Aug. 29, 2022, permanently adopted Dec. 8, 2022, effective Jan. 1, 2023.
17B A. R. S. Rules Fam. Law Proc., Rule 40, AZ ST RFLP Rule 40
Court Rules are current with amendments received and effective through August 15, 2023. The Code of Judicial Administration is current with amendments received through August 15, 2023.
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