Gun Ownership and Child Custody

In the wake of the horrible tragedy at Sandy Hook Elementary School in Newton, Connecticut, the National debate has intensified on gun control. As an attorney, we sometimes hear concerns of a parent about the “ex” spouse’s firearms.

If a domestic violence action with merit is filed under North Carolina law, the Court will routinely require the defendant to surrender his or her firearms to the Sheriff and that gun-ban may stay in effect for years (if not for life).  In fact, such an order could cause you to lose your job or be discharged from the military.

Even when domestic violence is not an issue, however, the Court can consider firearms as one factor among many in determining which parent should be awarded custody. In a child custody case, everything that has the potential to impact the safety and well-being of a child is fair game.  Pediatric groups have recommended that physicians ask parents whether they keep guns at home, and discuss gun safety with those that do in order to prevent shootings involving children. In 2009, according to the CDC, nearly 400 children younger than 15 were killed by firearms.

In a case decided in 2004 by the North Carolina Court of Appeals, the Court considered the fact that the father was a gun collector who had eleven firearms, who kept his firearms with him even when he ran errands with the children and according to the mother, slept with a loaded firearm under his pillow.

As part of the Court’s order, it found that “Father shall not own or possess any firearms until the children are emancipated, or until further order.” Martin v. Martin, 167 N.C. App. 365, 367, 605 S.E.2d 203, 204 (2004).

The Court of Appeals overturned the order because the trial court had not made any findings that the children were endangered by the guns or that their safety was somehow affected by gun ownership.  Had the court found that possession of the guns somehow endangered the children, the restriction would have likely been upheld.

While this appears to be the only appellate case directly on point, we deal with this issue at the trial level frequently.  In our experience, judges in child custody cases have not negatively affected gun owners who demonstrate to the Court that firearms are used and stored responsibly thereby ensuring that the child is safe and secure.

But since this issue is “fair game” and since there is a real danger to children from firearms that are improperly stored or left loaded within reach, any parent involved in a child custody dispute who also has firearms should strongly consider the following:

• Discuss the issue with your attorney
• Make sure the firearms you own are legal and registered (if required)
• Keep them locked up in a firearm safe so they are not accessible to children
• Take photographs showing safe storage
• Document any formal gun training you have had
• Consider getting Affidavits (and live testimony if need be) of others you have hunted with or been to the gun range with that can attest to your safety habits and responsible gun use.
• Consider storing your guns at work or at a friend’s house