MEMORANDUM OPINION AND JUDGMENT *
I. INTRODUCTION
Sеrgey and Lyudmila Misyura were married in 1994 and divorced in 2009. The superior court awarded Lyudmila primary physical custody of the parties' three children. Sergey was permitted visitation with the children provided сertain conditions were met.
When Lyudmila planned to move out of state with the children, Sergey sought a preliminary injunction to prevent her from leaving Alaska. Sergey's motion for preliminary injunction wаs not accompanied by a motion to modify custody. The superior court denied the motion for preliminary injunction and Sergey appeals. He argues that Lyud-mila should not have been pеrmitted to move out of state with the children and that the superior court erred by not scheduling a hearing on his motion for preliminary injunetion. We affirm the superior court's order denying the motion for preliminary injunetion and rejecting Sergey's claim that he was entitled to a hearing.
II. FACTS AND PROCEEDINGS
The facts pertaining to the parties' 2009 divorce and related custody dispute, which left Lyudmila with primary physical and sole legal custody of the parties' children, are set out in Misyura v. Misyura (Misyura I),
In December 2009 Lyudmila became engaged to a person in the military. When the military transferred Lyudmila's fiancé to Georgia, she began planning to move there. The parties dispute whether Lyudmila notified Sergey of these plans: Lyudmila stated in an affidavit that she informed him about the move in December 2009; Sergey asserts that he first learnеd of the move from the parties' oldest daughter on February 24, 2010.
Sergey did not file a motion to modify custody, but on March 2, 2010, he filed a motion for preliminary injunction seeking an order prohibiting Lyudmila from leaving Alaska with the children. He requested expedited consideration of the motion and argued that Lyudmila should not be allowed to move because: (1) she had not mentioned the move to him or received his consent or the court's permission; (2) the move constituted a substantial change in cireumstances; and (8) a hearing should be required first to determine the nature of the move, its potential impаct on the children, and potential modifications of custody and visitation.
Lyudmila opposed the motion. She argued that it did not set forth grounds sufficient to meet any part of the three-part test fоr preliminary injunctions. Specifically, Ly-udmila argued: (1) because she was willing to support contact and non-contact visitation between Sergey and the children after the move, he had not рroven that he would suffer irreparable harm if she moved; (2) she could not be adequately protected from harm caused by an injunction requiring her to forgo the impending move; and (8) Sergey had not rаised serious and substantial questions about the merits. Sergey filed a reply in which he denied any advance notice of the move, argued that the move would necessarily impinge upon his relationshiр with the children, and reasserted that a hearing should be required before Lyudmila left Alaska.
On March 4, 2010, the superior court denied the motion for preliminary injunction. The court found that Lyudmila's move was "for personal reasons" and not intended to frustrate Sergey's visitation. Sergey appeals the superior court's decision and requests that Lyudmila be "ordered back to Alaska."
III. STANDARD OF REVIEW
This court reviews the issuаnce of a preliminary injunction for abuse of discretion 2 and "will find an abuse of discretion only when ... left with a definite and firm *521 conviction, after reviewing the whole record, that the trial court erred in its ruling." 3
IV. DISCUSSION
A. Sergey Was Not Entitled To A Hearing On His Motion For Preliminary Injunction.
In Alaska, an award of custody or visitation may only be modified "if the court determines that a change in cireumstances requires the modificatiоn ... and the modification is in the best interests of the child." 4 We have held that "the custodial parent's decision to leave the state with the children constitutes a substantial change in cireum-stances" entitling the non-custodial parent to a hearing on whether modification of custody is in the best interests of the child. 5 Sergey argues that the superior court erred because it did not hold a hearing to аssess the best interests of the children before denying his motion for preliminary injunction. He contends that modification of the custody arrangement without a hearing cut off his visitation and violated his due prоcess rights.
Sergey's argument fails because he did not file a motion to modify custody; he filed a motion for preliminary injunction seeking to prohibit Lyudmila from leaving Alaska. Ser-gey's alternative argument, that he "did not have time to move for modification because the court authorized [Lyudmila's] move with the children out-of-state in response to his motion to prohibit her move and set a hearing" fails for thе same reason: Sergey did not file a motion to modify custody to accompany his motion for preliminary injunction. Resolution of the limited question before us in this appeal does not mean thаt Sergey is without options. The superior court retains jurisdiction over the parties and their children despite Lyudmila's move, 6 and Sergey is free to file a motion to modify custody. 7 In the meantime, the superior court did not err by denying Sergey's motion for preliminary injunction without holding a hearing.
B. The Trial Court Did Not Err By Denying Sergey Injunctive Relief.
This court has set forth a "balance of hardships" test for considering whether to grant a preliminary injunction:
The showing required to obtain a preliminary injunction depends on the nature of the threatened injury. If the plaintiff faces the danger of irreparable harm and if the opposing party is adequately protected, then we apply a balance of hardships approach in which the plaintiff must raise serious and substantial questions going to the merits of the case; that is, the issues raised cannot be frivolous or оbviously without merit. If, however, the plaintiffs *522 threatened harm is less than irreparable or if the opposing party cannot be adequately protected, then we demand of the plaintiff the heightеned standard of a clear showing of probable success on the merits. 8
The superior court concluded that Sergey did not demonstrate a likelihood of success on the merits of his claim sufficient to satisfy the "balance of hardships" test for a preliminary injunction. 9 We agree. Alaska law does not require a custodial parent to obtain permission from the non-custodial parent before moving out of state. 10 This court has held that a custodial parent is permitted to move out of state with her children as long as the move is for a legitimate reason, that is, not primarily motivаted by the desire to make the non-custodial parent's visitation more difficult. 11 "No Alaska law allows a court to require a custodial parent to [forgo] relocation if custody with that parent remains in the child's best interests and the relocation is not for an illegitimate reason." 12 Nothing in Sergey's pleadings or affidavits argued that Lyudmila's planned move was motivated by illegitimate intentions, and Ly-udmila clearly stated in the affidavit she filed in opposition to the motion for preliminary injunction that the purpose of the move was to allow her to accompany her fiancé to his new assignment in Georgia, to pursue her education, to work fewer hours, to spend more time with the parties' children, and to improve her financial position. Lyudmila's move makes Sergey's visitation much more diffiсult, but that fact, alone, is insufficient to prove that the move was motivated by a desire to cut off Sergey's relationship with the children.
We agree with the superior court's conclusion regarding Sergey's failure to demonstrate a probability of success on the merits, and affirm its denial of the motion for preliminary injunction.
v. CONCLUSION
For the reasons set forth above we AFFIRM the decision of the superior сourt.
Notes
Entered pursuant to Appellate Rule 214.
. N. Kenai Peninsula Rd. Maint. Serv. Area v. Kenai Peninsula Borough,
. City of Kenai v. Friends of the Recreation Center, Inc.,
. AS 25.20.110(a).
. House v. House,
. AS 25.30.310 dictates that:
[A] court of this state that has made a child custody determination ... has exclusive, continuing jurisdiction over the determination until ... a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as а parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal rеlationships; or ... a court of this state or a court of another state determines that neither the child, nor a parent, nor a person acting as a parent presently resides in this state.
. Wе have held that "a custodial parent's decision to move out-of-state with the children amounts to a substantial change in circumstances as a matter of law." Barrett v. Alguire,
. State, Div. of Elections v. Metcalfe,
. The superior court did not explicitly articulate which standard it was applying to Sergey's motion for preliminary injunction. On review, we conclude that Sergey's showing did not satisfy either level of the "balance of hardships" test.
. McQuade v. McQuade,
. Id.; House v. House,
. Moeller-Prokosch v. Prokosch,