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How Do You Serve Someone Who Is Difficult To Locate or In Jail?

DHFS v. Demond Edwards, 2022 IL App (1st) 210409

In order to get an enforceable child support judgment on a parent, a private party or the state must serve that party with a petition seeking child support. One common method of serving individuals who are hard to find is to use what is called “substitute service of process,” which means the petition for child support is (a) left with a person of appropriate age at the respondent’s “usual place of abode,” and (b) a copy of the petition is also mailed to that location. A critical issue with this type of service is determining whether or not the location where the petition is left is actually the respondent’s “usual place of abode.”

In DHFS v. Edwards, the First District had to address two basic issues: (a) what is a “usual place of abode” for someone that moves frequently or is in jail at the time service was made, and (b) what type of evidence does the petitioner have to present to rebut a challenge to the service of process. The First District held that (a) a location is a person’s usual place of abode if it is “reasonably likely to provide the defendant with actual notice of the proceedings,” (b) the petitioner does not have to submit counter-affidavits to defend the substitute service, but can rely on testimony elicited during cross-examination and other documentary evidence, and (c) the respondent’s being in jail does not automatically make the jail the respondent’s usual place of abode.

A.  The Underlying Facts

In 2003, DHFS filed a petition (“Petition”) to determine paternity and for child support on behalf of Lisa Sanders against Edwards. The Petition was served by substitute service at 13634 South Lowe Avenue, Riverdale, Illinois (“Lowe Avenue”) in April of 2003. The process server left the Petition with an individual named “Perez,” who “identified herself as over 13 years of age, a resident of the household, and the respondent’s mother.” The process server completed a certificate of service documenting these facts. At the time this substitute service was effectuated, Edwards was in jail.

Edwards did not appear at the child support hearing held in August of 2003. In September of 2003, the court entered a default judgment against Edwards, which ordered him to pay $300.50 per month in child support and a one-time retroactive child support amount of $1,803.

Sixteen years later, Edwards filed a motion to quash the service of process and to have the child support order declared void. Edwards argued that he was never properly served with the Petition because the Lowe Avenue location was not his usual place of abode and that he was in jail at the time. At the time Edwards filed his motion to have the child support order declared void, the amount of outstanding child support and interest he owed was potentially in the tens of thousands of dollars.

Edwards supported his motion with an affidavit from his mother (Perez) and a document showing he was in jail between March 14, 2003 and May 5, 2003. In her affidavit, Perez stated that Edwards never resided at the Lowe Avenue address, she did not know where he was in 2003, and that she was probably not the person served with the Petition. While Edwards attached this affidavit to this motion, Perez did not testify at the evidentiary hearing on the motion.

DHFS responded to the Motion by submitting various documents showing Edwards’ connection to the Lowe Avenue address: (a) work records showing that Edwards’ residence was listed as the Lowe Avenue address “as early as December 2009,” (b) the certificate of service, (c) his state issued identification in 2003 that listed his address as the Lowe Avenue address, and (d) various items showing that Edwards knew about the 2003 child support order as early as 2008. DHFS did not submit any counter-affidavits with its response.

The Circuit Court held an evidentiary hearing on Edwards’ motion in March of 2020, in which Edwards and his wife (“Rayford”) testified. On cross-examination, Edwards admitted that in 2003 he “lived a transient lifestyle,” and that his mother was “the most reliable person to get [his] mail,” and that he used the Lowe Avenue address as his mailing address: “I knew that if I had any important mail that came, my mom’s address was the place to send it, and she would *** let me know that I have mail.” On cross-examination, Rayford admitted she may have “worded it wrong” when referring to a portion of her affidavit, admitted she had an interest in Edwards’ not owing child support, and did not know that Edwards has fathered 24 children.

The Circuit Court did not find Edwards or Rayford’s testimony credible or Perez’ affidavit believable. The Circuit Court, however, felt it had to grant Edwards’ motion because DHFS did not submit any counter-affidavits in response to the affidavits and testimony filed by Edwards. The Circuit Court stated that where the service is “challenged by affidavit, and there are no counter affidavits, the [certificate of service] itself is not evidence, and absent testimony by the deputy, the affidavits must be taken as true, and the purported service of summons quashed.” The First District reversed.

B.  The First District’s Decision

The First District started its analysis by pointing out that without proper service, a subsequent judgment is void, even if the respondent had actual knowledge of the lawsuit. On the other hand, DHFS did not have to prove that Edwards actually received a copy of the child support petition that was filed in 2003. The First District stated that the “ultimate consideration in determining the propriety of substitute service is whether service at the chosen address was ‘reasonably likely to provide the defendant with actual notice of the proceedings.’” The assumption is that a person living at a respondent’s usual place of abode will provide a copy of the summons to the respondent.

Whether a certain address is the respondent’s usual place of abode is a factual issue, which the respondent can challenge with an uncorroborated affidavit. This means that the respondent can simply file an affidavit saying that he or she never lived at the address appearing on the certificate of service. At this point, the burden shifts to the petitioner (in this case DHFS) to rebut the respondent’s affidavit. One of the key issues the First District had to address in this case was the type of evidence required.

Given the amount of time that had passed since the original service of process in 2003, it was highly unlikely that DHFS would find any actual witnesses other than Edwards and possibly Perez and Rayford. DHFS did submit documents showing that Edwards listed the Lowe Avenue address as his residence. DHFS also obtained evidence in the form of cross-examination testimony of Edwards and Rayford at the hearing on Edwards’ motion. The First District held that the documents submitted by DHFS along with the cross-examination testimony elicited by DHFS at the trial was sufficient to meet its burden of providing competent evidence to rebut the affidavits submitted by Edwards. DHFS did not have to obtain counter-affidavits nor did it need to call the deputy who originally served the petition to testify.

The First District turned next to the actual evidence presented at the hearing. At the hearing, Edwards made admissions that supported DHFS’ position. Further, Edwards’s efforts to downplay the documents DHFS introduced showing he resided at the Lowe Avenue address were not deemed credible by the Circuit Court. The First District concluded that “respondent’s transient lifestyle, his numerous arrests and short jail stays, and his repeated statements that the [Lowe Avenue address] was the best place for him to receive important documents” was sufficient to show that the Lowe Avenue address was his usual place of abode.

Finally, the First District held that Edwards being in jail did not automatically change his usual place of abode from the Lowe Avenue address to the jail in which he was incarcerated at the time. The First District acknowledged that “Illinois courts have not yet determined whether incarceration alone changes a party’s usual place of abode,” and recognized that “there is a split in authority among several federal courts that have addressed this issue.”

With respect to Edward’s case, the First District pointed out that there is “[n]o hard and fast definition of ‘usual place of abode’” and that each case needs to turn on its own facts. The key consideration is whether “the chosen location ‘is reasonably likely to provide the defendant with actual notice of the proceedings.’” In Edwards, the First District concluded that Edwards “was frequently in and out of jail and because he stated the best place for him to receive important mail was [the Lowe Avenue address], service in jail would not have been the most ‘reasonably likely’ place to provide him with actual notice of the proceedings.”

Concluding Thoughts

The decision in Edwards shows that courts are supposed to take a practical approach when evaluating whether substitute service was effectuated. The 16-year gap between the substitute service and Edwards’ challenge made it extremely unlikely that DHFS would find anyone who could sign a counter-affidavit. Under these circumstances, DHFS was forced to rely on old documents and testimony elicited under cross-examination. Strictly requiring a counter-affidavit would undermine the policy behind substitute service and would encourage litigants to ignore the service of process in the hope that with the passage of enough time the petitioner would face an impossible evidentiary burden.

The decision in Edwards also shows the risk a respondent faces should he or she ignore substitute service that was effectuated at their usual place of abode. The First District’s opinion affirmed a significant child support judgment that will trail Edwards until it is paid-off.

Finally, the First District refused to adopt a rule that always transfers a respondent’s usual place of abode to a jail if the respondent is incarcerated at the time. Such a ridged rule would require that every petitioner using substitute service of process first ensure that the respondent was not in jail at the time. The First District, however, left open the issue of what happens if the respondent is incarcerated for an extended period of time.

When it comes to complex child support issues like the one faced in this case, it is essential to enlist the help of an experienced Chicago child support attorney. George M. Sanders is dedicated to staying informed regarding Illinois law and using his years of knowledge to help his clients fight for appropriate child support and custody arrangements. If you are seeking a reliable attorney assist you with your child support case, custody or divorce matter, contact The Law Offices of George M. Sanders P.C. today.

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