Free Speech

Child Custody Conditions Restricting Parents' Speech and Gun Storage

An interesting, though inconclusive, case involving preppers.

|The Volokh Conspiracy |

From last week's decision in Winkowski v. Winkowski (Minn. Ct. App.):

Appellant J. Vincent Winkowski (father) and respondent Lisa Marie Winkowski (mother) were previously married. They are the parents of A.W. born in 2009 and C.W. born in 2014. [They were divorced in 2016.] [T]he parties share joint legal custody with mother having physical care of the children subject to father's visitation rights.

Among other things, mother went back to court in 2019 and got two orders from the judge:

{The district court … order[ed] father to "refrain from featuring the minor children or mentioning their names in any YouTube videos" and requiring father to "remove the YouTube videos of his children already posted on his channel."} … [T]he district court explained in a single paragraph that father and his wife regularly post videos related to survival techniques and firearms on his YouTube channel, "The Family Prepper." The district court further found that the YouTube channel has 3,500 followers and that A.W. appears prominently in at least two of the videos. There are no other findings regarding the online videos….

In her affidavit supporting her request, mother states that the videos in question were posted without her knowledge or consent, that A.W.'s full name is visible or audible at least once, and that these videos portray "military tactics, guns, how to effectively kill or harm a human, and prepping content." Mother argued that father should not post such controversial videos of A.W. online without mother's consent. Mother provided the court with a video in which an eight-year-old A.W. states she is going to teach children how to be safe with guns and how to shoot them. She demonstrates how to remove the magazine of a BB gun, describes the "fundamentals of shooting," and fires at three targets.

None of the motions filed in district court specifically requested relief related to father's use or storage of firearms at his home during his parenting time. The district court did not make any findings regarding father's use or storage of firearms.

The parties' affidavits included statements regarding father's use and storage of firearms, and more generally regarding father's mental health. For example, mother's opposition to father's modification motions mentioned concerns related to father's PTSD, his obsession with guns, and preparing for the end of the world. Mother also noted that during their marriage, father purchased military equipment, guns, assault rifles, and copious amounts of ammunition. Mother also submitted a series of photos of multiple guns left out around the house. Father attached a psychological evaluation in which the evaluator notes that prior to seeking counseling in 2007, father kept a loaded firearm under his bed, was hypervigilant, and had irrational thoughts. Mother also discussed an incident in 2012, when father accidentally discharged his gun. Bullets from the weapon penetrated the parties' garage wall and went into the neighbor's garage. There was no criminal prosecution.

The district court addressed father's mental health, but did not make any factual findings specifically related to firearms. Nevertheless, the district court ordered that "[f]ather's firearms are to be safely locked in a gun safe at all times when the minor children are with him." …

The court of appeals remanded for more findings, because the trial court did not provide "sufficient findings to permit meaningful appellate review of these two requirements":

District courts have broad authority to impose initial or modified limits on the time, location, frequency, duration, supervision, and other aspects of parenting time, such as requirements that a parent participate in therapy or that a parent remain sober during parenting time, based on the best interests of the children.

In this case, the district court granted mother's motion, prohibiting father from featuring or mentioning the children in YouTube videos and requiring removal of all such videos that had already been posted on his YouTube channel. In addition, the district court imposed a requirement that father lock his firearms in a gun safe at all times when the minor children are with him. Both decisions fall within the broad discretion of the district court.

In its order, however, the district court made only one finding regarding father's YouTube channel and did not make any findings regarding firearms. This court cannot meaningfully review the decisions of the district court regarding storage of firearms and father's YouTube channel without more detailed findings addressing the best interests of the children. Therefore, we reverse these two decisions and remand to the district court for further proceedings. On remand, the district court may reopen the record at its discretion regarding the two conditions.

{Should the district court impose any requirements that implicate either party's constitutional rights, additional findings are necessary. See Newstrand v. Arend, 869 N.W.2d 681, 690 (Minn. App. 2015) (holding that father's "constitutional freedom of conscience" was not violated by an order requiring father to obtain a psychological evaluation), review denied (Minn. Dec. 15, 2015); Geske v. Marcolina, 642 N.W.2d 62, 70 (Minn. App. 2002) (rejecting First Amendment challenge to injunction against publication of pictures of a father's children); LaChapelle v. Mitten, 607 N.W.2d 151, 163-64 (Minn. App. 2000) (best interests of the child are a compelling state interest justifying infringement on a mother's constitutional right to travel), review denied (Minn. May 16, 2000); Sina v. Sina, 402 N.W.2d 573, 576 (Minn. App. 1987) (holding that being exposed to a third religion was not in the best interests of the children, despite father's First Amendment freedom to exercise that religion).}

I think that restriction on parents' constitutional rights should require more than just a "best interests of the child" showing. (Perhaps a finding that the father had accidentally shot up the house might justify a restriction on his handling guns around the children.) I've discussed this in some detail in this article about restrictions on parent-child speech, and I think much of that analysis should apply to restrictions on parents' speech depicting their children. But I agree that a court imposing any such restrictions should at least expressly explain what facts it thinks make such restrictions necessary.

NEXT: The Fifth Circuit's Inconsistent Approach to Certiorari and Abeyance

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  1. Perhaps a finding that the father had accidentally shot up the house might justify a restriction on his handling guns around the children.

    Didn’t he do just that?

    Mother also discussed an incident in 2012, when father accidentally discharged his gun. Bullets from the weapon penetrated the parties’ garage wall and went into the neighbor’s garage.

    1. Bernard11: Yes, that was my point — if the trial judge had issued such a finding, that might justify a restriction on gun handling around children; but the appellate court notes that this would require a finding and analysis, not just a bare order.

    2. Professor Volokh said most of what I had to say first, but additionally the judge didn’t make such a finding, rather there is a bare assertion on the record by Mother (which Father may not have had an opportunity to rebut or explain, which I’m not going to read to full record to find out either, since the judge didn’t make such a finding herself).

    3. No. The mother alleged it. The judge apparently didn’t confirm it (though the father may not have contested it). Regardless, the judge definitely didn’t confirm that that was the justifying basis for the restriction.

      1. Eugene, Robert, Rossami,

        I see.

        Thanks for the explanation.

    4. Multiple bullets? Negligent discharges are usually one round at a time. Strange.

      On a side note, I went to the YouTube channel. The video with the kids has their faces blurred out now. The ex-wife seems like a willing enough participant in the whole thing. My take, is that this is the angle she is taking to get back at her ex. I never ceases to amaze me how quickly a women can turn. Wait, no it doesn’t. But their lack of self awareness about it does.

      1. Sounds to me like shotgun pellets (from one discharge) and someone not knowing the difference…

        1. That is the Occam’s Razor explanation I think.

      2. ” Negligent discharges are usually one round at a time.”

        YMMV. Back when I was in basic training, one of the other recruits on the firing range accidentally emptied his whole magazine in one mistake. Since placing the rifle in fully-automatic mode was a range-safety violation, he got sent back to day one of training. Another range-safety violation we were specifically warned about is reaching over the firing line for any reason while the range was hot, but specifically to collect spent brass. I saw someone hauled off by range-trainers for reaching out to pick up some .22 shells off the range.

  2. Mother also noted that during their marriage, father purchased military equipment, guns, assault rifles, and copious amounts of ammunition.

    I seriously doubt he bought any assault rifles–defined as rifles that can be adjusted to fire on semi-automatic, full automatic, or burst, as well as single-shot, mode. Maybe what the court meant to say was “assault weapon.”

    1. I don’t doubt that he bought assault rifles.

  3. A couple things that jump out:

    “a copious amount of ammo” – given that I have watched news stories where a person with “an arsenal” turned out to have eight or nine guns and a thousand rounds of ammo, I wonder what she meant by this. The number of firearms and rounds required to be defined as “a copious amount” varies wildly with circumstances.

    “Assault rifles” – unfortunately the media and the anti-gun crowd have won this battle. Everyone “knows” what this means, never mind that actual military, selectable fire weapons, are heavily restricted and almost impossible to get.

    “Keep the guns locked up at all times when the kids are there?” So no more practicing or teaching the kids gun safety or how to shoot?

    I am agnostic about the youtube videos but I would say that if the mother also posts videos of her children on social media, then she is only complaining about the subject matter, rather than the fact that the videos are posted and this should be tossed out.

    1. 8 or 9 guns and a thousand rounds of ammo IS an arsenal.

      There’s a constitutional right here, and I respect it, but absent special circumstances, no parent should be keeping that amount of weaponry around small children, especially the sort of parent who takes a weapon out and shoots up the house.

      Guns are tools, not toys, and this sort of crap is dangerous.

      1. Is 8 or 9 knives an arsenal? Or is that a reasonable distribution of different knife types to keep in the block on your kitchen counter?

        Depending on the caliber, a thousand rounds is two or three days practice at the range. If spread across 8 or 9 different types of firearm, a thousand rounds is only a couple boxes of each.

        I agree that guns are tools, not toys, but your attitude about it is far more dangerous.

      2. “8 or 9 guns and a thousand rounds of ammo IS an arsenal.

        There’s a constitutional right here, and I respect it, but absent special circumstances, no parent should be keeping that amount of weaponry around small children”

        We evidently grew up in different places 🙂

        Secondly, I’m trying to follow your logic. First, I profoundly agree that leaving unsecured guns around small children is a bad idea (along with matches, various cleaning products, etc, etc). But I’m curious about the reasoning that makes you feel 1 or 3 or whatever guns in the safe is OK, but 8 (or 80 or 800) isn’t.

        1. The more there are, the more likely it is that one or more of them is unsecured and available to a child who hasn’t been properly trained. Of course, properly training the child(ren) is another way to fix this problem, but kids often have friends who visit, and their parents may object to you training their kids.

      3. 8-9 guns and a thousand rounds of ammo is an arsenal the way a roll of stamps and some envelopes is a post office. It’s a perfectly normal private collection.

        1. I know plenty of people who try to have at least a thousand rounds per caliber, at a minimum. None of their kids have misused their armories and shot up their schools. The problem with collecting guns, with that sort of philosophy, is that it gets expensive. Which is why I have standardized calibers, so as not to face this problem. Currently, that means 9mm, 5.56 NATO, and 12 gauge. Not that I won’t buy or build something else, but I won’t stockpile for these other calibers.

        2. “8-9 guns and a thousand rounds of ammo is an arsenal the way a roll of stamps and some envelopes is a post office. It’s a perfectly normal private collection.

          Is English not your first language, because in English, an “arsenal” is a place where collections of guns are kept.

          Arsenal,noun
          a place of storage or a magazine containing arms and military equipment for land or naval service.
          a government establishment where military equipment or munitions are manufactured.
          a collection or supply of weapons or munitions.
          source: http://www.dictionary.com

      4. A single documented example of a negligent discharge is not shooting up the house, any more than cutting yourself with a knife in the kitchen is an example of especially dangerous behavior. Or getting into a fender bender with the kids in the car.

        You are assuming danger to the children, on the part of the father. But that is just that – an assumption. You need documented facts, in the court record. All that you have in the record is the one negligent discharge, and that the girl was taught gun safety well enough to present it in a video. We have generations of Americans raised with guns in the house, quickly available for use, with little misuse. We are talking guns above the mantle in colonial days, and gun racks by the door in frontier days. A generation or two ago, kids would routinely travel to school with their rifles for marksmanship practice or competitions. Where we spend half the year in rural MT, they still do.

        My point is that we are talking the deprivation of an enumerated fundamental right, and that should require much more in the record than mere conclusory statements. Leaving guns and ammunition available to children, who have been properly taught gun safety, maybe is extraordinarily dangerous. But if it is, then prove it, with double blind studies. That is the sort of thing that you need in the record in order to satisfy increased, if not strict, scrutiny.

        1. 40 years ago, during hunting season Maine high school students were allowed to have rifles in their cars, parked on school property, as long as they weren’t loaded. Many high schools had an unwritten policy that a student could be late once a week (because they had been hunting) as long as they made up the work.

        2. “if it is, then prove it, with double blind studies.”

          Good idea. If only research on gun safety wasn’t ineligible for the largest source of research funding.

        3. “A single documented example of a negligent discharge is not shooting up the house” It’s one too many negligent discharges to have while your kids are about.

    2. ” heavily restricted and almost impossible to get.”

      almost impossible to get lawfully, you mean. Adapter kits for AR-15’s aren’t hard to make. AK-47’s are widely available worldwide to people who aren’t concerned with whether or not their government wants them to have one.

      1. Have you ever shopped for, or worked on guns? It sure doesn’t sound like it.

        1. My military occupation was “Aircraft Armament Systems Technician”. This meant I was trained on care and maintenance of the M61A1 and GAU-8. It also meant passing rifle training in BMT. I was disqualified from earning the sharpshooter medal because my target had 63 hits with only 40 rounds (The guy next to me misadjusted his sights and hit my the outer fringe of my target when he was aiming at his.)

  4. “father purchased military equipment, guns, assault rifles, and copious amounts of ammunition.”

    Obviously false. There is no such thing as an assault rifle.
    Might as well allege he lets the kids ride unicorn.

    1. The unicorn you can get: There’s this operation where you take a young goat, surgically remove the horn buds, split them down the middle, and implant half of each back into the center of the goat’s forehead. (It’s actually fairly minor surgery if done before the bud starts growing a horn.) If it works right, you get a spiral horn and the result looks just like a classical unicorn.

      They used to make them for circuses at one time. You’d probably get animal rights protesters at your door if you got caught doing it today.

    2. You are misremembering, my friend. It is “assault weapon” that is the made-up word. An assault rifle is any rifle with the capacity for fully-automatic fire.

      This has two possible solutions. Either the mother, judge, or both made a blatant factual inaccuracy that throws everything they have said into question, or the father has received a lot of approval/licenses to get permission to own machine guns.

      Both options make me favor lean towards the father on this.

      1. A couple quibbles. Legally, “Assault Rifles” are capable of select fire, which may be a burst (several M16 versions shot 3 round bursts, instead of fully automatic fire), or the usual fully automatic fire. On an M16/AR-15, there is a selector switch, with two positions for the non NFA regulated AR-15, and three positions for the NFA regulated M16/M4. Think of the selector positions as 0, 1, and >1 (shots per activation of the trigger). “Select Fire” allows the selection of >1. Moreover, Assault Rifles shoot intermediate caliber rounds, such as 5.56/.223 or 7.62×39mm. This effectively excludes automatic weapons shooting pistol caliber ammunition (Thompson sub machine gun), as well as medium and heavy machine guns.

        1. It’s worth noting that given the gun industry itself used “assault rifle” as a marketing term, to sell additional “sexier” weapons to all those gun worshippers with masculinity crises who had to pretend they were in the military and live out their delusions.

          So I am not very sympathetic to complaints from gun worshipers whenever that term is used. Yes, assault weapons BANS are vague, and even perhaps unconstitutionally vague, but the term itself- blame the gun industry for that.

          1. “It’s worth noting that given the gun industry itself used “assault rifle” as a marketing term, to sell additional “sexier” weapons to all those gun worshippers with masculinity crises who had to pretend they were in the military and live out their delusions.”

            Not that I’ve noticed. And I’m sure somebody else has already said this, but you don’t persuade many people by going straight to the insults and psychiatric diagnoses.

            1. If the shoe fits, you don’t have to wear it.

        2. Bruce, if I am not mistaken, a 3-round burst is legally considered to be “fully automatic” — that firing more than one round on a single trigger pull was the definition of “fully automatic” under the 1934 law.

        3. ” Assault Rifles shoot intermediate caliber rounds, such as 5.56/.223 or 7.62×39mm. This effectively excludes automatic weapons shooting pistol caliber ammunition” In BMT, our rifles were modified to use .22 ammunition to save money for the taxpayers. They also jammed about every third round fired.

      2. ” Either the mother, judge, or both made a blatant factual inaccuracy that throws everything they have said into question, or the father has received a lot of approval/licenses to get permission to own machine guns.”

        Or option C, the father didn’t bother to concern himself with approval or licenses for the weapons he wanted. Nobody testified that all his weapon acquisitions were lawful.

        1. Again, your ignorance is showing. There are precious few fully automatic weapons available for civilian purchase, and no new ones. It’s a safe bet that making these allegations in court has sparked the interest of law enforcement. Also, you can get a decent used car for less than you’re likely to pay for a fully automatic weapon even when everything is above board.

          1. ” your ignorance is showing. There are precious few fully automatic weapons available for civilian purchase, and no new ones.”
            You mean to say there are few fully automatic weapons available for lawful civilian purchase. This isn’t a limit on people who want one bad enough to decline to follow the law. The AK-47 is the most popular rifle in the world.

  5. Putting pictures or videos of 8 year old girls on the internet is inherently dangerous — there are way too many sickos out there.

    If that’s the mother’s issue — and she isn’t posting any videos of the girl either — I agree with her. Bad things HAVE happened. OTOH, if it is just the gun, then that’s another story.

    1. “Putting pictures or videos of 8 year old girls on the internet is inherently dangerous ”

      This is paranoia.

      1. Says the guy who’s implied fully automatic weapons are a dime a dozen on every streetcorner.

        1. You seem to have a rather vivid imagination.

  6. Of course, the father (or the mother) putting their children in death machines that kill over 36,000 people a year (accidentally) is perfectly all right.

    1. cars don’t kill people. drivers kill people. Except in Stephen King novels such as “Christine” and “Maximum Overdrive”.

      1. Toyota was having a problem with uncontrollable acceleration for a while….

        1. No; it was having a problem with people hitting the wrong pedal and then trial lawyers smelling blood in the water and attacking.

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