Who Pays the Court Costs for a Modification of a Custody Order?

By Jennifer Williams

In a suit for modification of custody, court costs are either paid by the litigants themselves or the state if a litigant is declared indigent -- without the ability to pay. Another cost associated with going to court are attorney fees, which are charged by the individual attorneys representing the parents in the suit for modification of custody. Each litigant pays their own attorney fees, or the judge orders one parent to pay all attorney fees depending on the financial situation of the parents and facts in the case.

Court Costs Incurred In a Suit to Modify Custody

The most common court costs include the fee for filing the initial Petition for Modification of Custody, and costs associated with serving the Petition on the other spouse or publishing notice of the suit in a local newspaper. Other court costs that may crop up in more complicated modification of custody suits include fees for issuing subpoenas and fees charged by expert witnesses in exchange for their time to both assess the case and testify at trial.

Indigency

If a parent does not have the money to pay the court fee to file the Petition for Modification, she may file an Affidavit of Indigency with the clerk of the circuit court that issued the initial custody order. Usually the court clerk declares the parent indigent if she receives public assistance or her income is below the federal poverty level, as published annually in the Federal Register. Once declared indigent, the initial filing fee is waived and the Petition for Modification is then served for free by the civil process unit of the local police department rather than by a private process server. If the local police department cannot find the other spouse to serve him, a notice of the suit is published in a local newspaper and publication fees are paid by the court.

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Attorney Fees

In a modification of custody where one or both parents are represented by an attorney, the Petition may ask the court to make the other parent pay all attorney fees. Courts consider custody modifications when there has been a substantial change in a parent's circumstances since the original custody arrangement was made. As grounds for asking the court to make the other parent pay all attorney fees is if the substantial change of circumstance necessitating the modification includes substance abuse or other behavior that endangers the child. The other spouse may also ask the court to make the filing parent pay all attorney fees if the Petition for Modification is frivolous, groundless and geared to harass the other parent.

Court-Ordered Payment of Attorney Fees

Ultimately, division of attorney fees between the parents in a custody modification is up to the judge. Even when the modification is not frivolous, the judge may assign all attorney fees to the parent best able to afford them. Otherwise, each parent pays their own fees. Usually the judge decides at the end of the case who will pay attorney fees. As attorneys may require retainers up front before rendering services, and periodically require additional infusions of cash into client accounts, most of the fees incurred by parents during a modification suit are already paid by the time the judge makes a decision. If the court orders one parent to pay all fees, payment then amounts to a reimbursement of fees already paid by the other parent.

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Objection to Family Court Order for Attorney's Fees
 

References

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