Modifying Child Custody or Child Support Order

NOTICE: There is a $75 filing fee for Motions to Modify

What is a Motion to Modify?

A request to the court to change an existing court order because of a change in circumstances. There is a $75 filing fee for Motions to Modify.

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How much does it cost to file a Motion to Modify?

It costs $75 to file a Motion to Modify Child Custody, Visitation or Support or Spousal Maintenance or Property Division. The motion to modify paperwork will not go to the judge until you have either paid the filing fee or been granted a fee waiver if you are low income.

If you are modifying a registered out-of-state order within 30 days of the registration confirmation date, there is no filing fee. After 30 days, you need to pay the $75 fee.

It is FREE to file an uncontested motion to modify when the parents agree on the change.

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What can I modify?

• Property and debt division from a divorce or dissolution: very rarely
• Spousal support: possibly
• Child custody and support: if there is a change in circumstances

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What change in circumstances are needed to modify custody and support?

For custody, a change in circumstances means something has happened so that the old parenting plan is no longer in the child(ren)'s best interests. Examples include:

• the original plan was for an infant and now the child is 5 years old and will start kindergarten so the old schedule of 10 am exchanges does not work
• one parent is moving out of state so the existing schedule of week on / week off is impossible
• the parent whom the children were living with four days a week went to jail so the existing schedule is impossible
• an act of domestic violence between the parents when returning the children.

For child support, there needs to be:

• a 15% change in the amount of child support ordered (this means that when you calculate support based on the parents' current income now, it is 15% more or less than the current support order), or
• a change in the parenting plan from primary custody to shared custody or vice versa that affects the child support formula. You may find the FAQs on Child Support helpful to decide whether to file a motion to modify child support.

The Alaska Supreme Court has issued many decisions about what types of circumstances amount to a change of circumstances allowing a modification.

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How does a judge decide the parenting plan if a parent wants to move out of state?

The judge considers all of the legal factors to decide what parenting plan is in a child’s best interests. One factor is 'the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity." This involves considering both the importance of staying in the same place and maximizing stability of the child’s relationships.

In cases where a parent wants to move with the child and the other parent wants the child to stay in the same community where he/she has been living, the judge uses a 2-step process to determine the best interests of the child.

1. Is the planned move legitimate? (The reason for the move can’t be to deny the non-moving parent time with the child. Some examples of legitimate reasons may be a better paying job, enrolling in a special education program, family support.)
2. If the move is legitimate, the judge considers the best interest factors to determine the arrangement that serves the best interests of the child. This requires looking at the consequences to the child both:
   • if the parent leaves with the child, and
   • if the parent leaves without the child.

So the judge is supposed to look at the effect on the child if the child moved with the parent and if the child stayed without the parent. The court considers "best interest" factors which include:

• the physical, emotional, mental, religious, and social needs of the child;
• the capability and desire of each parent to meet these needs;
• the child's preference if the child is of sufficient age and capacity to form a preference;
• the love and affection existing between the child and each parent;
• the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
• the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;
• any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
• evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
• other factors that the court considers pertinent.

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How do I find out if the other parents income has changed?

• Once a year you can ask the other parent in writing to provide documents such as tax returns and pay stubs showing their income for the prior calendar year. Attach documentation of your annual income for the same period that you are asking for their income information.
• Do NOT file the written request in court. It is just between the parties.
• Within 30 days of the written request, the other parent must provide the documents to you.
• You can only request the other parent's income information once a year. However, within a court case you can request this information through the discovery process.

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Can child support be retroactively modified?

No. Generally, you will always owe child support according to the most recent court order, or administrative order if you do not have any court orders. Therefore, if there has been a 15% change in your income or the parenting plan has changed in a way that affects the child support, you must file a motion to change the child support. Otherwise, you'll just keep owing under the existing order. However, this is a dynamic area of law and you should consult with an attorney to find out whether there are any legal strategies that might be helpful to you.

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Can you get support for an 18 year-old-child still at home and in high school?

Yes, as long as all of the conditions are met. Please read the Instructions, DR-323 for more information about the conditions and forms.

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What is the difference between a Motion to Modify and an appeal?

A Motion to Modify is a request to the trial court or administrative agency to change an existing order because of a change in circumstances. The trial court or agency will consider new evidence as it relates to the change of circumstances. In the family law context, Motions to Modify Custody or Support can be filed anytime before the child(ren) turn eighteen.

An appeal in this context is a review by the Alaska Supreme Court of the final judgment or decree issued by the trial court of the agency. An appeal is not a new trial, and no new evidence will be accepted. Also, appeals occur shortly after the final judgment or decree is issued. In fact, the rules require that you must file a Notice of Appeal within 15 or 30 days depending on the type of case being appealed. Please see the appeals page for more information.

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What forms can I use to file a Motion to Modify?

There are 2 options for paperwork that you can file. They both work, but the first gives you the opportunity to provide more specific information about the reason to modify:

• Motion to Modify Custody, Visitation & Support Packet, SHC-PAC12

OR

• Motion to Modify Packet, DR-700
• Order Modifying Child Support, DR-301 [Fill-In PDF] (if you are asking to modify child support fill out as if the judge is granting what you asked for in the motion, but DO NOT SIGN)
• pick one of the following if you are asking to modify custody and visitation and fill out as if the judge is granting what you asked for in the motion, but DO NOT SIGN:
  • Custody Order (1 page), SHC-1103 Word | PDF OR
  • Post-Judgment Order for Modification of Custody and Visitation (4 pages), SHC-1124 Word | PDF

There is a $75 filing fee for Motions to Modify.

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What forms can I use to respond to a Motion to Modify?

If you have been served with a Motion to Modify, you may use the following packet to respond:

• Response to Motion to Modify Packet, DR-720

What if we agree on the modification?

Even if both parents agree on the change, you still need to file something in court. Both parents can file together:

• Uncontested Motion to Modify Custody, Visitation and Child Support Packet, SHC-PAC11

It is FREE to file an uncontested motion to modify when the parents agree on the change. When the parents do not agree, it costs $75 to file a request to modify.

Read the Uncontested Matters, Agreements and Settlement section to learn more.

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What forms are always required with a post-judgment motion?

With any motion filed after you have received a final judgment in a divorce or custody case, include:

• a Notice of Motion, SHC-1630 Word | PDF

Note: the Motion to Modify packet, DR 700, includes a form Notice of Motion to Change Custody, Support or Visitation, DR-710, which serves the same purpose. If you are filing the DR-710, you do not need to also file the SHC-1630.

If both parents are filing together an Uncontested Motion to Modify, SHC-PAC11, you do not need to file a Notice of Motion.

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Are there any special service requirements?

The method you use to serve depends on what court order you want to modify.

Motion to Modify from Alaska Court Orders

If you are filing a motion to modify custody or support from an order issued by an Alaska court, you serve the opposing party by first class US mail or hand delivery. Please read the information about serving the opposing party.

Motion to Modify from Registered Foreign Orders

If you are filing a motion to modify custody or support from an order that has been registered in the Alaska court because the original decision was issued by a court outside Alaska, there are different requirements to serve motions to modify registered orders.

Please read the information about serving the opposing party.

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What about modifying an order from the state I used to live in?

You can only modify an out-of-state custody order in the Alaska court if the Alaska court has jurisdiction over the child(ren). The general rule is that the child has to have lived in Alaska for at least the last six months before the Alaska court has the power to make decisions about child custody and visitation. However, jurisdiction can be very complicated so if you have any questions about where to file your motion to modify, you are strongly urged to talk to a lawyer.

If Alaska has jurisdiction to modify the order:

If Alaska does NOT have jurisdiction to modify the order:

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Rev. 8 May 2018 © Alaska Court System www.courts.alaska.gov Contact Us

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