Facts: Mother and Father are the parents of a young child.

During their divorce, Mother questioned a Facebook post during Father’s parenting time where a gun was visible lying on a table. Father explained when his family came to see the child, his grandfather “had his gun on him” and laid it on the table during the visit.

Mother admitted she owned a gun and used it for hunting.

The trial judge stated that the parties “caught me at a bad time” because a teenager in another custody case before the judge had recently shot herself. He added, “If you want to make sure you never see your son again, let this repeat itself.”

In a temporary parenting plan, the trial court ordered both parties to keep all firearms in a gun safe during their parenting time.

During the trial, Father testified he enjoyed hunting and recreational shooting but kept his firearms in a gun safe. He said he had a concealed carry license and usually carried his firearm but stopped doing so during his parenting time because of the trial court’s order.

The trial judge explained he was not saying Father is not a safe gun owner. Instead, whenever the issue arose during various hearings, the trial judge referenced the facts of the separate custody case involving another family where the child shot herself.

After the trial, the trial judge continued his order that all guns remain in a safe whenever the child is present, noting again the separate case he had involving the child’s death.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court.

Tennessee courts may restrict lawful activities that jeopardize the child’s welfare during visitation if there is definite evidence that permitting the right would endanger the child. However, such restraints must be well-defined and involve conduct that competent evidence shows could cause harm to the child.

The purpose of restraints on parental conduct is to protect the child. Thus, what matters is whether the parental behavior during visitation is harmful to the child.

Here, the Court found the trial court’s restriction on firearms during parenting time was too broad and unsupported by the record:

Father does not object to the parenting plan requirement of keeping firearms stored while his son is present in his home. His narrow objection is to the gun storage limitation imposed by the trial court insofar as it keeps him from being able to carry a firearm outside the home at all while his child is present…. We note that the trial court’s parenting plan restriction regarding firearms simply stated that all guns must remain in a safe whenever the child is present, including concealed weapons, without any findings regarding the child’s best interest, the evidence presented at trial, or any legal authority for such a restriction. In its oral ruling, the trial judge discussed the facts of the separate custody case that had been before him involving another child and made clear that this incident was the reason for its restriction in this case. When the issue arose again at the post trial hearing, the trial judge again at referenced incidents that had occurred in other cases. The trial court then entered an amended order stating that it’s firearm provision was in the best interest of the child it given “safety concerns for a child of his age,” and it was “not meant as a punishment to the parties.” Because the record reflects that the trial court imposed this restriction based on the facts of other cases, and it did not make any factual findings to support the need for the restriction on carrying a firearm outside the home, we delete the trial court’s firearm provision in its entirety and modify the parenting plan to state, as the parties agreed, that firearms shall be stored in a gun safe when the child is present inside the home. We reiterate that the trial court’s discretion on visitation matters is not unbounded; it must be based on proof and appropriate legal principles. This particular decision was not.

The Court reversed the trial court and changed the firearm provision to require only that firearms be stored in a gun safe when the child is present inside the home.

K.O.’s Comment: Compare this case with Maxwell v. Woodard. In Maxwell, the trial court only required that any gun in either parent’s home be “locked or concealed.” The Court strengthened the trial court’s ruling, finding “it is wholly inadequate to order that a firearm in a home with a child be ‘concealed’ from a curious child. Any firearm in a home with a child must be securely locked in a device specifically made to ensure that a child who finds the firearm cannot access it.”

While Maxwell may have established the floor for gun security with a child in the home, does Schanel establish the ceiling?

Source: Schanel v. Richardson (Tennessee Court of Appeals, Middle Section, September 29, 2023).

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