Should Olivia Wilde Have Been Served With Child Custody Papers Whilst On Stage?

• Published date: 16 August 2022
• Subject Matter: Family and Matrimonial, Family Law
• Law Firm: Ian Walker Family Law and Mediation Solicitors
• Author: Ian Walker Family Law And Mediation Solicitors

When the actress Olivia Wilde was recently served with child custody papers whilst on stage it caused something of a sensation. Surely, said many, she should not have been served publicly, whilst she was working?

The custody papers (in America they still use the word 'custody') had been issued by Ms Wilde's former fiancé, actor Jason Sudeikis, with whom she has two children.

The papers were served upon Ms Wilde in Las Vegas whilst she was on stage discussing a forthcoming film. We cannot comment upon whether the service was in accordance with the applicable local law, but would it have been in accordance with the law in England and Wales?

Why personal service?

Starting with the basics, whenever someone issues an application to a court the other party (the 'respondent') must be informed of the proceedings, and provided with a copy of the court papers (i.e. the application and any notification of the first hearing date). This is done by serving the papers upon them.

The court will not allow the proceedings to continue until it is satisfied that the respondent has been served with the papers, as obviously the respondent has a right to be heard in the proceedings.

Service of family court papers is normally effected by sending the papers to the respondent's solicitor, if they have one, or by sending them to the respondent's address. Personally serving the papers by having a process server hand them to the respondent, as happened to Olivia Wilde, is not normally necessary, save in two particular situations.

The first situation is where the papers include a domestic abuse injunction order. Such an order should normally be personally served upon the respondent, to ensure that the respondent has actually received it, and that the order is therefore effective.

Obviously, this does not apply to an application for a child arrangements order, which is what we would call a custody application in this country.

The second situation, however, could apply to an application for a child arrangements order. It is where the application has been sent to the respondent, but they have not acknowledged receipt, so it can't be proved that they have actually received the papers. Here, the court might want the papers to be personally served upon the respondent, to ensure...