Kelley v. Kelley
2007 Okla. LEXIS 131, 175 P.3d 400, 2007 OK 100 (2007)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under the Oklahoma Constitution's due process clause, parties in a child custody proceeding have a fundamental right to cross-examine a guardian ad litem concerning the basis of any custody recommendation made to the court. A statute or court order that prohibits such cross-examination is unconstitutional as applied.
Facts:
- A mother and father were engaged in a child custody proceeding in district court.
- On March 31, 2005, the trial court appointed a guardian ad litem (GAL) to protect the best interests of the minor child.
- The court issued a standard form order stating that the GAL shall not be called as a witness in the case.
- At a pre-trial conference on June 21, 2007, the GAL recommended that the mother retain primary custody of the child.
Procedural Posture:
- The father and mother were parties to a custody proceeding in an Oklahoma district court (trial court).
- The trial court issued an order prohibiting the appointed guardian ad litem (GAL) from being called as a witness.
- After the GAL recommended the mother retain custody, the father (petitioner) filed an application for the Supreme Court of Oklahoma to assume original jurisdiction and a petition for a writ of mandamus.
- The father challenged the constitutionality of the trial court's order and the state statute, 43 O.S. Supp.2006 § 107.3(A)(2)(e), upon which it was based.
- The Supreme Court of Oklahoma, the state's highest court, assumed original jurisdiction to decide the constitutional question.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a state statute and a corresponding trial court order that prevent a parent in a custody dispute from cross-examining the court-appointed guardian ad litem about their custody recommendation violate the parent's due process rights under the Oklahoma Constitution?
Opinions:
Majority - Watt, J.
Yes, a state statute and trial court order that prevent a parent from cross-examining a guardian ad litem about their custody recommendation violate the parent's fundamental due process rights. The right of a parent to the care, custody, and management of their child is a fundamental right protected by the state constitution. Due process requires an orderly proceeding where parties have a meaningful opportunity to be heard and defend their rights. Relying on its precedent in Malone v. Malone, the court reasoned that when a trial court considers reports or recommendations from experts in custody matters, the preparers of those reports must be subject to cross-examination. To deny a parent this right is fundamentally unfair, as it amounts to the court receiving private evidence without the parties having the opportunity to test its accuracy, rebut it, or explain it. Therefore, the statute and order are unconstitutional to the extent they deny the right of cross-examination.
Concurring in part and dissenting in part - Winchester, C.J., and Hargrave, J.
This opinion was noted in the case text but no written opinion was provided.
Analysis:
This decision solidifies a critical procedural safeguard for parents in Oklahoma custody battles, ensuring that the influential recommendations of a guardian ad litem are not accepted by the court without adversarial testing. By declaring the relevant statute and a common local court order unconstitutional as applied, the court elevates the role of the GAL from a confidential advisor to the court to a witness whose conclusions must withstand cross-examination. This holding brings the function of a GAL closer to that of an expert witness, promoting transparency and accountability in the fact-finding process for custody determinations. The ruling prevents GALs' reports and recommendations from becoming a form of 'secret evidence' and reinforces the principle that judicial decisions must be based on evidence presented and vetted in open court.
Unlock the full brief for Kelley v. Kelley