But you signed for it!

I have been working on a pro bono case for a few months now.  It involves a husband and wife who married overseas and moved to the U.S. a few years ago.  They had one child born in the U.S. and lived under one roof.  They decided to take a vacation (or to move back) to their home country (depending on who you believe) and all three traveled over seas.  Some conflict took place over seas and the mother attempted to return with her daughter, but was unable to leave with her daughter.  Nonetheless, she returned to the U.S. sans daughter.  She is now filing for divorce and custody of her child.  The father is in an unknown location and can only be reached via e-mail.

As you can imagine, there are quite a few huge issues here, most dealing with dueling interests of sovereigns.  However, before getting to any of those issues, my main concern is that we must satisfy due process by personally serving the opposing party with summons and the petition before being able to continue with this action.  How do you serve someone overseas without knowing where he/she is located?  Another wrinkle is that this foreign country is not a signatory to the Hague Convention and has very poor relations with the U.S.

I consulted a practice guide and was doing a little research involving alternative methods of service.  Of course, the preferred and sure-fire method is personal service.  That looks unlikely here.  Substituted service is another possibility, but we’ve found that the opposing party has substantially cut ties with the U.S. and does not maintain a mailing address, place of business, or other address such as a P.O. Box.   Third is service by publication, which looks to be like the only way to proceed.

While looking into alternative methods, I started reading about Notice and Acknowledgment of Receipt.  I have been involved in a few cases which used this method of service.  It usually involves one parent moving away from the forum state and agreeing to consent to the home state jurisdiction.  However, I read something that caught my eye.  The practice guide said that personal jurisdiction could not be exercised over the nonresident opposing party on a signed Notice alone.  At first blush this did not make sense.  What better consent to jurisdiction than a signed document agreeing to allow the court to exercise personal jurisdiction over you?  The only explanation I could think of was that it uses the word “nonresident” and perhaps what it means is that if the party being served has no other contact with the forum state other than this signed Notice and Acknowledgment then there is no nexus between forum and party.  Perhaps if the party to be served was a former resident it would establish minimum contacts.

In any event, the Notice and Acknowledgment could be a way to go here, but it seems like it would waste more time than anything else.  The particular foreign county at issue here is not too great with postal mail, and if the party to be served does not respond we’d be back in this position anyway.