Murrell v. Cox, 2009 OK 93

Summary

The Oklahoma Supreme Court addressed an appeal and an original proceeding concerning a mother's parental rights, a terminated guardianship, and paternal grandparents' requested visitation. The Court held that the trial court failed to determine the mother's fitness, effectively awarded physical custody to the grandparents through an excessive visitation order, and improperly delegated reunification decisions to a counselor. The appeal was reversed and remanded with instructions, and extraordinary relief was granted.

Holdings

1. After a guardianship is terminated and custody is to be returned or awarded to a parent, the trial court must make an on-the-record determination of the parent's fitness following an evidentiary hearing. A parent does not regain fitness by agreement or implication.
2. An award of five days per week of physical custody to grandparents exceeds the statutory authority to award reasonable grandparent visitation and constitutes a custody determination rather than visitation.
3. Absent a judicial determination that Mother remained unfit, Mother was entitled to legal and physical custody following a reasonable judicially established transition period, including authority to make decisions concerning the child's care and education.
4. Extraordinary relief was warranted because the trial court exceeded its authority and abused its discretion by failing to determine Mother's fitness and by effectively awarding custody to the paternal grandparents through an expansive visitation order.

Questions Presented

1. Whether the trial court was required to make an on-the-record determination of Mother's fitness before awarding or restoring custody after termination of the guardianship.
2. Whether the trial court exceeded its authority by awarding paternal grandparents five days per week of physical custody under the label of reasonable grandparent visitation.
3. Whether the trial court unlawfully deprived Mother of physical custody and authority over the child's care and education without a determination of continuing unfitness.
4. Whether extraordinary relief should issue to require reassignment of the trial judge and an expedited determination of fitness, transition, and any reasonable grandparent visitation.

Disposition

reversed_and_remanded