April 1, 1991
By John S. Yodice
Over the years, many AOPA members have brought to us a seemingly narrow, but very important, legal question: May a separated or divorced parent take his or her minor child flying in a private aircraft over the objection of the other parent? With a resounding "yes," the Supreme Court of Mississippi has given us an authoritative answer that we hope will be a persuasive precedent throughout the United States.
Here are the facts of the case. The parents divorced in 1980. The mother was granted custody of the two minor children, and the father was granted visitation rights. Some years later in 1988, the father earned his private pilot certificate. He wanted his children, ages 12 and 15, to fly with him, and he wanted them to learn how to fly.
The mother flatly refused. She had no objection to the children flying on a commercial airplane. But she wouldn't allow him to fly the children in his airplane, and she wouldn't permit him to provide flying lessons for the children.
The father sued, asking for an injunction against the mother's interference with his visitation rights, and a hearing was held.
The mother, called by the father as an adverse witness, confirmed her refusal. She testified that she did not want the children to fly with their father because he had had his certificate less than a year. She added, I know that light planes are dangerous. You can pick up the paper any time and see where accidents have occurred. I also know that if the planes go down, the passengers, usually, don't make it. And this would be both of my children going down at the same time.... He also has allowed the children to fly with his father [the children's grandfather] when they did stunt flying, upside down and flips." She entered into evidence an article from a magazine that indicated that most flying accidents involved pilots between 35 and 39 years of age who were engaged in personal flying and had between 100 and 499 flying hours. The father was 38 or 39 years old at the time of the hearing and had between 110 and 115 total flying hours.
The father presented his case attempting to prove that he was a safe and competent pilot and that the aircraft in which the children would fly were well-maintained. He testified that he had between 110 and 115 total flying hours and that, although he had a certificate for only about a year, he began taking flying lessons in 1966 when he was 16 years old. His formal flying lessons began in 1987. He testified, and later the supreme court took special note, that he is a member of AOPA. He wanted his children to be familiar with aircraft, and he wanted them to learn how to fly.
When asked about the age of the single-engine airplanes in which the children would fly, he testified that he didn't know their ages but that they were inspected annually, and one was inspected after every 100 hours of use.
Asked about an "accident" he had while flying he explained that he only had a "hard landing" that occurred when he was a student pilot. He said that "the Federal Aviation Administration investigated it, and that is the way they termed it, and assured [him] it was not written up anything other than a landing incident." He said that after this incident, he "went for [his] check ride with a duly appointed FAA examiner who flew [with him] for in excess of two hours in all attitudes and configurations, and [the examiner] certified that [he] was a competent pilot."
The chancellor who conducted the hearing was unimpressed. Even before the hearing was ended, he announced that he had heard enough evidence on the flying and that he was not going to require that the children fly. He denied the injunctive relief requested by the father. The father appealed, and the Mississippi Supreme Court reversed the chancellor, holding that the chancellor "committed manifest error in refusing to issue an order enjoining [the mother] permanently from interference with the exercise of [the father's] visitation rights."
The supreme court said, "There is nothing in the evidence which shows that [the father's] flying would endanger the children's lives. There is nothing in the record which establishes that the children were opposed to flying or taking flying lessons. Simply because the mother does not want the children to fly is not enough to deny the father the right to either provide lessons or fly his children during his visitation hours....Otherwise custodial parents could prohibit their children from riding with their non-custodial parent in a sports car. After all, we take judicial notice that more deaths occur on our roads than in our skies. Simply put, our roads are far more dangerous than our skies. Were we to affirm the chancellor's position, as he explained it in his opinion, endless litigation possibly would result. We can imagine custodial parents coming to court based on unjustified fears and apprehensions and attempt to prohibit their children from learning how to drive, fish, hunt, or swim when a non-custodial parent is exercising his or her visitation."
As we said earlier, we hope that this will be a persuasive precedent.
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