Schulman and Pitt: Joint Custody
1982]
JOINT CUSTODY
563
enables the noncustodian to subject both the custodian and child to endless and potentially frivolous litigation. Significantly, the "modification at any time" provision may only apply to modifications which seek joint custody.IIO Where joint custody is originally ordered and one parent seeks a modification to sole custody, the traditional "change of circumstances" standard may still apply. It may therefore be extremely difficult to modify a joint custody order if, for example, one of the joint custodians is not carrying out his or her responsibilities or the parents are unable to agree. Additionally, if the original joint custody order was forced l l l or made at a time when the parents were hostile, continued hostility and disagreement may not constitute a "change in circumstances" sufficient to terminate an unworkable joint custody arrangement. C.
ADDmONAL PROVISIONS: NON-RELATED TO JOINT CUSTODY
1. AccountIng by CUstodial Parent
Joint custody legislation in two states expands the rights of the noncustodial parent under a sole custody order. The noncustodial parent is given the unfettered power to challenge the custodial parent's use of support payments and, in effect, her or his care of the child. Oregon's joint custody statute permits the court "at any time" to "require an accounting from the custodian with reference to the use of the money awarded" for child support. 111 New York's 1981 joint custody legislation included a similar "accounting at any time" provision. 111 Neither provision requires that there be evidence of misuse of funds or neglect of the child. The accounting may be requested for a good reason, a bad reason or no reason at all. Furthermore, there is no provision regarding payment of attorneys' fees to defend such actions. This type of accounting provision creates the potential for abuse and harassment of the custodial parent. It invites viola120. E.g., HAWAII REv. STAT. ยง 571.46.1(d) (Supp. 1981). See supro note 110 and accompanying text. But Bee N.M. STAT. ANN. ยง 40-4-9.1(B) (Supp. 1981) (permitting modification of a joint custody order upon the motion of one parent). 121. See "Joint Custody Upon Request of One Party," IIUpro notes 62-65 and accompanying text. 122. OR. REv. STAT. ยง 107.105 (1981). 123. H. 2385, 204th Legis., 1981 Sess. (New York) (died); A. 4166, S. 3255, 204th Legis., 1981 Sess. (New York) (vetoed). See Appendix B.
Produced by The Berkeley Electronic Press, 1982
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