This subject report has been developed to assist custodial and non-custodial parents in their efforts to support taking their child flying when the child is in their custody — over the objections of the other parent.
John Yodice, AOPA's legal counsel, wrote the article "Pilot Counsel: Visitation Flights," which, though dated, is still valid. It discusses the details and outcome of a custodial case heard by the Supreme Court of Mississippi that resulted in a ruling in favor of the father taking his children flying when they were in his custody.
Following the article on visitation flights is a letter, reproduced with permission, from an attorney in California in which a California Superior Court judge's decision is quoted regarding the safety of general aviation and granting permission for the father to fly his children in his own airplane.
The section on Child Custody Case Histories includes summaries of relevant case histories; some that have favorable rulings for taking a child on a general aviation flight, and some that do not. Also included is a non-aviation case that discusses whether a custodial parent could limit the child's recreational activity when visiting the non-custodial parent. These cases can be used as resource material and can be further researched in the event of a custodial challenge concerning flying.
In addition, we have included information on the safety of flying, as well as a couple of articles on flying with children.
As always, feel free to call AOPA's Pilot Information Center at 800/USA-AOPA with questions.
Pilot Counsel: Visitation Flights By John S. Yodice AOPA Pilot, April 1991 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.
Jan Eric Bolt, Attorney at Law Waterfall Towers 2455 Bennett Valley Rd. Suite 218-C Santa Rosa, CA 95404
April 30, 1999
Re: Sonoma Co. Superior Court Case No. SCV-169040
Dear Mr. Smith:
The Honorable Superior Court Judge Cerena Wong, sitting as a Superior Court judge in Sonoma County, California, stated in her decision filed with the Superior Court on February 5, 1997, among other things, the following:
"It is practically common knowledge that despite the sensational stories that surface in the news media concerning fatal plane crashes, air flight is safer than car transportation. Auto accidents resulting in property and personal injury or death is so much more frequent that it is not newsworthy unless someone of notoriety is involved or the accident was particularly grisly or unusual. This court accepts the opinion of Father's expert, John Schmitt, duly qualified and credible expert witness, that to fly from Fresno to Santa Rosa in a private plane is safer than to drive a car or ride in a train. Having heard Mr. Schmitt's personal observations of Father's flying skills, this court adopts his opinion that Father has the experience and training to fly his children safely in his private plane..." COURT FINDINGS AND ORDERS "...The court further finds that private aircraft flight is safe and that Father is adequately trained and experienced to personally fly them in his own plane..."
"It is practically common knowledge that despite the sensational stories that surface in the news media concerning fatal plane crashes, air flight is safer than car transportation. Auto accidents resulting in property and personal injury or death is so much more frequent that it is not newsworthy unless someone of notoriety is involved or the accident was particularly grisly or unusual. This court accepts the opinion of Father's expert, John Schmitt, duly qualified and credible expert witness, that to fly from Fresno to Santa Rosa in a private plane is safer than to drive a car or ride in a train.
Having heard Mr. Schmitt's personal observations of Father's flying skills, this court adopts his opinion that Father has the experience and training to fly his children safely in his private plane..."
COURT FINDINGS AND ORDERS
"...The court further finds that private aircraft flight is safe and that Father is adequately trained and experienced to personally fly them in his own plane..."
Father was allowed to fly the children only in VFR conditions until further order of the court.
Sincerely, Jan Eric Bolt
Note: These are case histories. For a legal interpretation for your state, you should seek an attorney's advice. Not all of these cases specifically address aviation, but rather address the right of one parent to control the activities of the child when he or she is in the custody of the other parent. While the holdings in these cases may be persuasive to a judge considering a case in another state, they are in no way mandatory authority in other jurisdictions.
Cases involving child custody typically revolve around the concern for the best interests and welfare of the child. In some of these cases, courts considered the overall welfare of the children and determined that there was little danger to the children, and many positive benefits of an unfettered relationship with the non-custodial parent.
Unfortunately, there are a few cases where courts addressed the same issue and imposed restrictions on the pilot-parents who wished to engage in general aviation flights with their child during the periods when they had custody. In most of these cases, the courts focused on the potential dangers to a child on a general aviation aircraft and found those risks to be not in the best interest of the child.
Cases in support of general aviation flying:
Mord v. Peters, 571 So. 2d 981 (Miss. 1990) Custodial parent's control over children during visits with other parent is limited. In this case the Mississippi high court overturns an injunction that allowed the custodial mother to prohibit the pilot father from taking the children as passengers in his private airplane during visitation periods.
Johnson v. Johnson, 357 So. 2d 69 (La. App. 1978) The court rejected a mother's contentions that the father taking the mutual children on "weekend trips to far places" in his private airplane caused her great concern for their safety and "interfered with their ability to attend school upon their return...."
Cases not in support of general aviation flying:
Siliquini v. Siliquini, 786 A.2d 275 (Pa. Super. 2001) The court refused to allow a father to fly his 4-year old daughter on a private airplane both for recreational flights as well as flights to meet the mother to exchange custody of the child at the beginning and end of visitation periods. The father was instrument rated, although the court noted he was not current and had only flown 250 hours total in the past 14 years, many of these with an instructor, and had not flown at all in the year preceding the case. The court also expressed "grave concerns" for the safety of the child in large part because the father intended to rent the airplanes he would be flying....Although father is responsible for a pre-flight check, he is not responsible for maintenance and upkeep of these planes. He is not intimately familiar with these planes, as he does not own them.... He cannot request certain aircraft. No possibility exists for father to fly the same plane in order to become comfortable with it. This lack of familiarity with the peculiar nature of each aircraft, not to mention each model, creates a question of the child's safety.... We cannot say that it would be safe for the child to be a passenger." The court also expressed concern that the risk of harm to the child would be increased if the father attempted to use a private plane to transport the child to exchanges with the mother because the father would be rushed to arrive at the meeting place on time, and could sacrifice safety in preflight planning.
Sheehan v. Sheehan, 152 A.D.2d 942 (N.Y.A.D. 1989) On appeal, the court upheld a lower court decision that a father could not take his 3-year old daughter on flights in a private plane during his visitation periods because the flights were not in the child's best interest at her early stage of development. Specifically, the court held, "Irrespective of plaintiff's competence as a pilot, a child of such tender years is less capable of protecting herself in the event of an incident, particularly in a single-engine craft."
Sutter v. Sutter, 172 So. 2d 910 (Fla. App. 1965) A provision in the final divorce decree which granted the father visitation stated "[i]n connection with the above described visitation rights and privileges, the [father] shall not take the minor children in an airplane other than a certified carrier..." The court noted the father was "a qualified aviator but not for a certified public carrier." Id. In denying the father the right to fly his children in a general aviation airplane, the court found the question was not the pilot father's capabilities, but rather "whether the restriction has a reasonable basis...grounded upon the...welfare of the children." The court concluded the restriction was "supported by the dangers incident to the type of flights suggested" [i.e., GA flights]. A slight ray of hope for the father was the court's instruction that he could petition the court for permission to take particular trips "which are proved to be in accordance with the reasonable welfare of the children."
Relevant child-custody case, but not specifically about general aviation:
Eichelberger v. Eichelberger, 345 SE2d 10 (Va. App. 1986) Answers the question whether a custodial parent could limit the child's recreational activity when visiting non-custodial parent. In this case, after the parties were granted a divorce, the mother was given custody of the children. The father bought the youngest a motor bike for his birthday. The mother objected to the bike and started proceedings to force the father to dispose of the bike. The trial court ordered the father not to allow the child to ride the bike. The appellate court reversed this decision stating that "the relationship between the child and non-custodial parent should not be subject to the dictates of the custodial parent..."
Is It Safe? General Aviation (GA) in the United States is one of the world's safest forms of public transportation. Part of that outstanding track record comes from the steady improvements in technology and certification standards that have made GA safe for those flying and those on the ground.
Proper Restraints Keeping your child safe in a general aviation aircraft By Ian Blair Fries AOPA Pilot, July 2005 Parents who transport their children in light aircraft should be aware of practical methods to keep them safe despite the lack of official guidance. There is little published data specific to general aviation. National Highway Traffic Safety Administration (NHTSA)-certified child passenger safety technicians are trained to provide information about child seats and motor vehicles, but most are not familiar with the general aviation environment. But information about restraining children in automobiles can be extended to light aircraft.
Caution: Kids on Board Flying family vacations can be memorable By Amy Laboda AOPA Flight Training, July 1999 We were four kids with nine years between us, and we managed comfortably in the relatively roomy Aztec cabin. Our most serious tragedy was when my brother, the youngest, would forget his luggage, and no one would notice until we arrived at our destination. Those family cross-countries are probably what brought me to aviation and have shaped the kind of pilot that I've become. I married a pilot and before I knew it, there I was heading out on long cross-country trips with my own kids tucked snugly in the back, first in car seats, then in seat belts.
Updated Tuesday, March 18, 2008
AOPA thanks our members for their continued support in protecting the freedom to fly.