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.


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.

Divorce is never easy, but we can help. Learn More

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.

Divorce is never easy, but we can help. Learn More
What Happens if You Disobey a Court Child Custody Order?


Related articles

Child Support Laws in Washington, DC

In the District of Columbia, child support laws are enforced by the Child Support Services division of the Office of Attorney General. As in the 50 states, the District sets general guidelines for child support payments from a noncustodial to a custodial parent. Child support orders are a common feature of final divorce decrees, which may take into account support payments already made by the noncustodial parent while the divorce was pending.

If the Wife Filed for Divorce, Who Will Get Custody of the Kids?

Of all the issues attached to divorce, none can be quite as emotionally draining as a child custody dispute. If the divorcing couple cannot reach a custody agreement on their own, the court steps in. The judge evaluates a variety of factors before determining the custody arrangement that meets the child's best interests. Child custody decisions are not made on the basis of which parent initially filed for divorce.

How to Get Child Custody If a Parent Refuses to Sign the Papers

Because child custody disputes can be contentious and stressful, family courts encourage parents to settle their disputes on their own. This not only shields the child from the stress of a custody fight, but it also allows the parents the autonomy to work out a custody plan that works with both parents' schedules and the child's needs. When one parent refuses to sign a proposed parenting plan or settle a custody dispute, however, you will need to use the court system to resolve your custody issues.

Get Divorced Online

Related articles

Why Does Attorney Get Fees With Child Support Order?

Most attorneys charge for their services, whether those services deal with child support issues or anything else; ...

How Much Does it Cost to File Divorce Papers?

Fees and other costs are inevitably part of divorce. The fees vary by each state and county court; in addition, legal ...

The Proper Steps in a Custody Battle

Custody battles erupt over legal custody, physical custody and child support of a child. You can file a petition for ...

Mississippi Joint Custody Law

In Mississippi, as in all states, custody decisions are made according to the best interests of the child. Judges may ...

Browse by category
Ready to Begin? GET STARTED