Detailed Answer
In South Dakota, service of process must comply with the South Dakota Rules of Civil Procedure and the South Dakota Codified Laws. When you serve a lawsuit or other court papers on a minor or on an adult under guardianship, you must follow special rules designed to protect their rights.
1. General Personal Service Requirements
You generally must deliver the summons and complaint to the defendant in person. See SDCL Rule 4(d). This ensures the court can later prove the person received notice.
2. Serving Minors (Persons Under 18)
If the defendant is under age 18, South Dakota law requires you to serve a parent or guardian instead of—or in addition to—the minor. Specifically:
- If the minor has a court-appointed guardian, you must serve that guardian. (SDCL Rule 4(d).)
- If there is no guardian, you must serve the minor’s parent or legal custodian. The court assumes parents have the authority to represent their child in legal proceedings.
- If the minor is age 14 or older and refuses service, you may effect personal service directly on the minor. The court treats older minors as sufficiently mature to understand the proceeding.
3. Serving Individuals Under Guardianship
When a court has appointed a guardian for an adult who lacks capacity, you must serve the guardian. Under guardianship statutes:
- Serve the guardian of the estate or the individual’s person. (See SDCL 29A-5-503.)
- If multiple guardians exist (for estate and person), serve both to ensure proper notice.
- If you cannot locate the guardian, the court may appoint a guardian ad litem to receive service on behalf of the incapacitated person.
4. Proof of Service
After service, the server must complete an affidavit or return of service that states when, where, and how the papers were delivered. The court will not proceed until you file this proof with the clerk’s office.
5. When to Consult an Attorney
Service on minors and incapacitated adults can raise complex issues. If you have questions—such as whether a guardian has full authority, or which family member qualifies as a custodian—consult a licensed attorney.
Disclaimer: This article provides general information only. It does not constitute legal advice. Always consult a qualified attorney about your specific situation.
Helpful Hints
- Confirm the minor’s or ward’s guardian appointment in court records before serving.
- Ask the process server to carry a copy of the probate or guardianship order.
- Retain a signed proof of service to avoid delays in your case.
- When in doubt, file a motion to appoint a guardian ad litem for proper representation.
- Follow local court rules—counties may have specific requirements on filing service returns.