Eichelberger v. Eichelberger

• Decision Date: 17 June 1986
• Docket Number: No. 0989-85,0989-85
• Citation: Eichelberger v. Eichelberger, 2 Va.App. 409, 345 S.E.2d 10 (Va. App. 1986)
• Court: Virginia Court of Appeals
• Parties: Stan A. EICHELBERGER v. Lynda J. EICHELBERGER. Record

Page 10

345 S.E.2d 10

2 Va.App. 409

Stan A. EICHELBERGER v. Lynda J. EICHELBERGER.

Record No. 0989-85.

Court of Appeals of Virginia.

June 17, 1986.

John H. Kennett, Jr., Roanoke, for appellant.

Jeffrey H. Krasnow, Roanoke, for appellee.

Present: KOONTZ, C.J., and COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

The narrow question presented in this appeal is whether the trial court erred in holding that a custodial parent had the right to restrict a recreational activity in which the child could engage while visiting with the noncustodial parent who had been awarded liberal visitation privileges. We hold that, in the absence of a finding that the activity presented a danger to the child or otherwise affected the child's welfare, the trial court applied an incorrect standard when it ruled that the custodial parent had the right to restrict visitation activities between the noncustodial parent and child. We reverse the holding and remand for further proceedings.

The parties were divorced in 1982. Mrs. Eichelberger was granted custody of their three children. Mr. Eichelberger, the appellant, was granted liberal visitation privileges. Mr. Eichelberger is a forty-three year old veterinarian practicing in the Roanoke area. No evidence was presented that he was irresponsible either as a parent or in the exercise of his visitation privileges, or that he exhibited a lack of parental concern for his children's welfare or safety. The children visit him on his fifteen acre farm overnight every other weekend and in the afternoons on Tuesday and Friday of each week. The youngest of the three children, David, celebrated his eighth birthday on April 5, 1985, at which time Mr. Eichelberger gave him a mini trail bike. Evidence heard by the trial court showed that this bike was designed for use by children five to twelve years of age. The maximum speed of the mini bike is twenty-five miles per hour. The bike is kept at the farm where David rides it in the fields and pastures under the personal supervision of his father. Mrs. Eichelberger acknowledges that appellant tries to teach David the safest method to operate the bike, but nevertheless, she objects to his riding it. She contends that he is a small child, is somewhat aggressive and often uses poor judgment. She asserts that under these circumstances the bike poses a serious threat to David's health and safety.

Mrs. Eichelberger initiated proceedings in the trial court seeking to require Mr. Eichelberger to dispose of the mini bike. The court ruled that Mrs. Eichelberger, as the custodial parent, had the right to make the decision whether the child should be permitted to ride a mini bike. The court directed that "the motorcycle be returned and he not be permitted to ride it." The court did not make a finding that David's riding the bike presented a serious danger to his health or safety.

Mr. Eichelberger urges that the custodial parent may not interfere with and restrict the visitation activities of the children while with the non-custodial parent, so long as the activities do not adversely affect the children's health, safety, morals, education, religious teaching or the fundamental training from the custodial parent. Mrs. Eichelberger argues that the custodial parent, who has been granted the primary responsibility of parental care, can make decisions regarding what activities will serve the best interests of the children, and that she has the right to control those activities which may implicate the children's safety.

The authority vested in a trial court to decide issues concerning the care, custody, support and maintenance of the minor children, the visitation rights of the non-custodial parent, and the extent to which those rights and responsibilities shall be apportioned between estranged parents is a matter of judicial discretion which courts must exercise with the welfare of the children as the paramount consideration. See Allen v. Allen, 188 Va. 717, 721, 51 S.E.2d 207, 209 (1949); Code § 20-107.2. In the great majority of...