Can the court modify custody without a Motion to Modify being filed?

I have an appeal in the Supreme Court in AK

Question

I (Plaintiff) filed a Motion to Enforce, the first motion since our divorce 5 years ago, my exhusband (defendant) filed a Motion to Change Jurisdiction as he had moved to California and was keeping my son there. The Alaska judge ruled to retain jurisdiction and I thought we would then address enforcement; however at the trial call 2 weeks before the next hearing which I thought was to be on enforcement the judge says "we will be addressing the defendants motion to modify". I state "there is no motion to modify" to which the judge responds " a motion to enforce is an implied motion to modify, due to the fact there is no cross motion, we will deal with enforcement". We have the hearing 2 weeks later, which the judge opens with "we are here on the defendants motion for modification ...". The judge modified custody and gave  my husband full custody of our son in California, the Record of Decision and the Final Order both state "based on the defendants motion to modify". No motion exists.

Terrence H Thorgaard · Answer

That judge gave you fair warning that the court would sua sponte (on the judge's own motion) consider modifying custody.  Thus I don't think you will prevail with this point on appeal.  Did you and your ex-husband both present evidence on this "motion"?  I think the Alaska Supreme Court will decide the appeal on the basis of whether the Superior Court had the minimum evidence sufficient to rule as it did.

Stefan Otterson · Answer

You probably can't succeed by focusing on formalities, especially in matters where the best interests of a child are at issue.  In family law especially, the courts function flexibly to address whatever needs to be considered before making a decision.   If your ex husband alleged changed circumstances as a defense to your enforcement action, then the judge has to consider them.   Looking at this solely from the perspective of your motion--the judge has to hear both sides to make a decision.  If the judge denies your request to enforce the original order, that has the effect of changing the order.    Therefore, it makes sense to consider either outcome to be a possibility.   The main question is whether you were given adequate notice of this so that you could prepare.  Generally, the purpose of written motions is to give notice of what the issues are and what you need to prepare for.  This is called "due process."  When the judge puts an issue on the table, you still have the right to due process, which requires adequate notice and an opportunity to be heard on the issue.  To show a failure of due process, you would need to convince the appeals court that you were blindsided, and thus unable to present a proper case to the court.   However, if all the issues and facts related to the modification were raised in your ex-husband's opposition to your motion to enforce, that might be difficult.   If the judge did give you notice that the facts alleged in the opposition seemed to be the equivalent of a motion to modify, that was probably enough.   If you asked for more time to prepare and the judge denied it, you might have an appeal point.  If you didn't object to the changed agenda and ask for more time, then you will probably have difficult that the judge committed an error.

Q: Can the court modify custody without a Motion to Modify being filed? I have an appeal in the Supreme Court in AK