Tuesday, July 28, 2009

More than Grades – Homework also used to Determine Child Visitation

This is not a new case but one that is worth mentioning because of the significant impact it has. The Indiana Court of Appeals in the published opinion of Higginbotham v Higginbotham upheld the denial of a child's visitation rights to her father until she showed “vast improvement in her scholastics”.

Pursuant to the parties’ agreement, which was approved by the dissolution court, Kathryn was to have primary physical custody of their daughter,K.H., who was age 10 at the time and the parties were to share joint legal custody.

Robert Higginbotham out of concern for his daughter filed his Verified Petition to Modify Custody, alleging that there had been substantial changes in circumstances that were not in her best interests. The parties agreed to a custody evaluation that was performed by Dr. John C. Ehrmann, Jr., who recommended that custody remain the same with the addition of the appointment of a parenting coordinator. The parties agreed with the evaluators findings and stipulated to its admission.

The trial court found that the most recent report card of K.H. reflected below average grades in Science, Math, and Social Studies, and she did not pass the portion of ISTEP testing relating to English and Language Arts. Kathryn Higginbotham placed blame for this on Robert saying that their child returns from her Wednesday night visitations with Robert with homework that is incomplete or that needs to be redone.

The trial court issued its order on the petition by giving full physical and legal custody of K.H. to Kathryn. The court further eliminated K.H.'s midweek visitation with her father and conditioning its resumption upon her showing a “vast improvement in her scholastics.”

Finding no error, the court affirmed. Opinion by Judge Baker with Robb and Kirsch concurring.

There are a few problems I have with the dangerous precedent that this case sets. I have not found cases in which Higginbotham has been cited and I hope I never do. It clearly goes against logic to say that a child's “below average grades in Science, Math, and Social Studies, and [that] she did not pass the portion of ISTEP testing relating to English and Language Arts” are a direct result of her visitation time with her father on Wednesday evenings.

I don't think I am alone when I say that the basis for scholastic results are dependent upon much, much more than three or four hours on one week night. Many educational sites recommend such things for improving grades as:
~ Talking to teachers
~ Reviewing class placement
~ Tutoring
~ Getting parents involved with teachers
~ Using peer study groups
~ Sleeping and eating well prior to taking tests
However, I found no information that suggested cutting off contact between a parent and a child. Quite to the contrary involving the parents with the educational process was highly encouraged. An intelligent judge would have instead crafted a visitation order that may have involved some type of school participation by both parents.

This opinion had nothing to do with the best interest of a child. Punishing a child by cutting off the very limited contact that she already had with her father until she raises her grades is a travesty. This opinion is based more upon the Court's long-held opinion that men are the root of all problems in a child's life. If Baker, Robb and Kirsch had any compassion for children and concern for their best interest then they would have remanded this case to the trial court, based upon an abuse of discretion, and instructed the trial court to craft a visitation order in the child's best interest.

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