The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Child Custody Conditions Restricting Parents' Speech and Gun Storage

An interesting, though inconclusive, case involving preppers.


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.