Summary
The Supreme Court of Oklahoma held that due process requires parents in a custody proceeding to have the opportunity to cross-examine a guardian ad litem regarding the basis of a custody recommendation. The court declared unconstitutional, as applied, the statutory provision and trial court order barring the guardian ad litem from being called as a witness, assumed original jurisdiction, and issued a writ of mandamus.
Topics
Practice areas
Questions Presented
- Whether due process gives a parent in a custody proceeding the right to cross-examine a guardian ad litem concerning the basis of the guardian's custody recommendation.
- Whether 43 O.S. Supp. 2006 § 107.3(A)(2)(e) is unconstitutional as applied insofar as its discovery restriction prevents such cross-examination.
- Whether the trial court's order prohibiting the guardian ad litem from appearing as a witness is unconstitutional to the same extent.
Holdings
- State due process requires that a parent in a custody proceeding have the opportunity to cross-examine the guardian ad litem concerning the contents of the guardian's report and the basis for any custody recommendation once the report or recommendation is proffered to the trial court.
- Section 107.3(A)(2)(e) is unconstitutional as applied to the extent its exemption of the guardian ad litem from discovery negates a parent's due-process right to cross-examine the guardian concerning the report and custody recommendation.
- The trial court's order is unconstitutional to the extent it prevents the parent from calling the guardian ad litem to testify and cross-examining the guardian about the basis of the custody recommendation.
Key quotations
“state due process necessitates that parties in a custody proceeding have the right to cross-examine the guardian ad litem concerning the basis of any custody recommendation.” (175 P.3d at 403; ¶ 2)
“There is no back door to the courts for witnesses, investigators, or litigants.” (175 P.3d at 406; ¶ 11)
“Due process necessitates that a parent have the right to cross-examine the guardian ad litem once the guardian's report is proffered to the trial court.” (175 P.3d at 407; ¶ 14)
Factual background
The custody proceeding had been pending in district court for more than two years. The trial court appointed a guardian ad litem for the minor child and entered a form order providing that the guardian would not submit a written report or be called as a witness. At a pretrial conference, the guardian recommended that the mother retain primary custody, after which the father challenged the statute and order insofar as they prevented him from cross-examining the guardian about the recommendation.
Procedural history
The district court appointed a guardian ad litem in a pending custody proceeding and entered an order stating that the guardian would not be called as a witness. After the guardian recommended that the mother retain primary custody, the father filed an application to assume original jurisdiction and petitions for writs of prohibition and mandamus. The Oklahoma Supreme Court assumed original jurisdiction and issued a writ of mandamus.
Remand instructions
The court issued a writ of mandamus consistent with the parent's right to call and cross-examine the guardian ad litem concerning the basis of the custody recommendation.