Petition for Writ of Certiorari — Gilbert v. Colvert

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i Supgeme Court, U.S,

FILED ‘|

;

cae

No 2D t 9

8 o d q SOREL SPANIOL, JR,

In The a

Supreme Court of the United States

October Term, 1989

CYNTHIA M. COLVERT

(now Gilbert),

Petitioner,

versus

JAMES ROBERT COLVERT, Jr.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OKLAHOMA

Rosert S. Riz_tey

BREWSTER, SHALLCROSS & RIZLEY

20 East 5th Street, 15th Floor

Tulsa, Oklahoma 74103-4304

(918) 584-1500

Attorney for Petitioner

Of Counsel:

LARRY M. SPEARS

Bay, SPEARS, Lees & VERITY

501 Northwest Thirteenth

P. O. Box 61190

Oklahoma City, Oklahoma 73146

(405) 235-5605

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. In the actual trial on the substantive merits of a civil

case involving fundamental rights, does the trial judge’s

reception, in camera, and in the involuntary, judicially-

imposed absence of the litigants and even of their counsel,

of the unsworn and secret testimony of a witness, fol-

lowed by the judge’s sealing the in camera transcript so as

to deny the litigants knowledge of even the substance of

the unsworn secret testimony, violate procedural Due

Process of Law, as guaranteed by the Fourteenth Amend-

ment to the Constitution of the United States?

2. Phrased more precisely in the context of this case,

Does the practice of a trial judge, in presiding over a

judicial child-custody contest between two divorced

parents, of entertaining in camera, secretly, and not

under oath, the testimony of the minor child himself,

and thereafter withholding from the parents even so

much as a summary of the substance of the child’s

testimony, violate the parent-litigants’ right to Due Pro-

cess of Law?

3. In more particular, does this “in camera interview”

practice, whether in a custody contest or in any other

type of a civil case’s actual trial on the merits, violate the

litigants’ Due Process rights to:

a. A open and public trial?

b. Confrontation and cross-examination of the testi-

fying child?

QUESTIONS PRESENTED FOR REVIEW - Continued

c. Rebuttal of the child’s testimony by the parents’

own independent testimony and evidence?

4. Does the essential substance of the specific pro-

cedural guarantees of the Bill of Rights apply to civil

proceedings in the State courts by virtue of the Due

Process guarantee of the Fourteenth Amendment?

5. Are the Due Process violations mentioned above ren-

dered “harmless” because of the existence of “other evi-

dence” assertedly consistent with the trial judge’s

decision in such a trial?

6. Is the “best interests of the child” test, either on its

face or as applied to the facts of this case, violative of Due

Process by reason of vagueness and overbreadth?

7. Should the instant case be reviewed as the civil

“companion-case” analogue to the pending criminal

child-witness “shield” cases of Maryland v. Craig, U.S.,

October Term No. 89-478, and Idaho v. Wright, U.S.,

October Term, 1989, No. 89-260, certiorari granted in

both cases on January 16, 1990?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

EE SO EONS oc wns s cc esac ecacsesssceces's Vv

PETITION FOR A WRIT OF CERTIORARI......... 1

pen De eS | Re 2

JURISDICTION TO ENTERTAIN THIS PETITION .. 3

LEGAL PROVISIONS INVOLVED.................. 3

STATEMENT OF MATERIAL FACTS............... 4

A. The Procedural Due Process Issues........ 4

B. The Substantive Due Process Issue......... 9

REASONS FOR GRANTING THE WRIT ........... 11

Part A: The In Camera Interview Issues........ 11

1. A State court... has decided a Federal

question in a way in conflict with appli-

cable decisions of this Court. .......... 11

a. Open and Public Irial.............. 12

b. Confrontation and Cross-Examina-

Te a OS cee eee bake 12

ie a a Oe weap es claees 12

2. A State court of last resort has decided a

Federal question in a way in conflict with

the decision of another State court of last

Pt Mu cet hese Ghee War K eee Nees eee S 12

a. The Confrontation/Cross-examina-

tion and the Open Trial............ 12

b. The Separate Problem of Rebuttal .. 17

TABLE OF CONTENTS - Continued

c. The Decisive Issues Narrowed...... 19

3. A State court... has decided an impor-

tant question of Federal law which has

not been, but should be settled by this

COON, kook 54000 s cd0s Veen awsebeckatan'es 24

Part B: The “Best Interests of the Child” Issues .. 26

i eek Pee aed oe ee 29

INDEX TO CITATIONS

Page

Unitep States CONSTITUTION

fh Pr TTT ere ee eee 3

eh errr reer ret Or rr ee ee 3

FEDERAL STATUTES

BO UGRe: TEST sok s oe ncnwas sedeeee eee eee 3

Be UK... ZN 6s cea viucs ¢ ecclissi 3

ae UDR... DI bs ous beak en vas cena eee 1, 4

OKLAHOMA STATUTES

30 CEB A. TOG 605 sn cncvicccedaeset steele 21

1 GGA. VEG occ cccdvewevsve es us bueee yee 21

~ 12 ODA. 1966 Sapp. Set. 8277-2 «0556 cot aeaes 3 4

12 ODA. BRIG) 2. oo ov scacecdhvbetusween eee 19

Ed CORA, BOO vie sco c cn ecn cnueucne eee 21

SS COR. TS os ins secs oa we ee cee ae

Oklahoma Session Laws, 1986, Ch. 196 ............ 4

CASES

Alsager v. District Court (S.D.lowa, 1975) 406

F.Supp. 10, aff'd 545 F.2d 1137 (8th Cir., 1976) .... 27

INDEX TO CITATIONS - Continued

Baggett v. Bullitt (1964) 377 U.S. 360.............. 26-27

Baker v. Vidal (Tex.Civ.App., 1962) 363 S.W.2d 158.... 13

parser ©. Page (ISGG) SOO US. FIP s« o0 ish i kee ciennus 25

Berger v. California (1969) 393 U.S. 314............. 6, 2

Boatsman v. Boatsman (Okla., 1985) 697 P.2d 516....6, 9

California v. Green (1970) 399 U.S. 149............... 25

Callen v. Gill (1951) 7 N.J. 312, 81 A.2d 495...... 14, 18

Carter v. Kubler (1943) 320 U.S. 243 ................. 12

Chapman v. California (1967) 386 U.S. 18............. 23

Colvert v. Colvert (Okla., 1977) 568 P.2d 623 ....2, 5, 14

Commonwealth ex rel. Morales v. Morales (1972) 222

Pe.puper. 373, 2964 Aad FBZ. oo. is cicsssscveseus 13-14

Connally v. General Construction Co. (1926) 269 U.S.

Cook v. Cook (1969) 5 N.C.App. 652, 169 S.E.2d 29.... 13

Coy v. lowa (1988) __ U.S. ___, 101 L.Ed.2d 857,

pe ape, ee ere eae 12, 20, 21, 23, 25, 26

Craig v. State (1989) 316 Md. 551, 560 A.2d 1120,

a Be Se eee ret eee ee 26

Davis v. Davis (Okla., 1960) 355 P.2d-572............. 6

Davis v. Smith (1979) 266 Ark. 112, 583 S.W.2d...... 27

DeYoung v. DeYoung (1978) 62 Ill.App.3d 837, 379

PRN DOW 8 5550005460008 eR kw EERE RES REE REM 14

Vii

INDEX TO CITATIONS - Continued

Duncan v. Duncan (Mo.App., 1975) 528 S.W.2d 806 .... 13

Duncan v. Duncan (Okla., 1969) 449 P.2d 267 ......... 6

Ex Parte Berryhill (Ala., 1982) 410 So.2d 416...... 13, 29

Ex Parte Wilson (Ala., 1984) 450 So.2d 104........... 13

Fahy v. Connecticut (1963) 375 U.S. 85............... 23

Gennarini v. Gennarini (1984) 2 Conn.App. 132, 477

fe G . eererererery eT Terr TT rere 13, 16, 20

Gerald G. v. Theresa G. (1981) 284 Pa.Super. 498, 426

Fie WOE asec oo sknounyenien seis nese nen eeeee eee 13

Giacopelli v. Florence Crittenton Home (1959) 16

CERO SOM, ESO WA Gide sich sc cadcenncsssvcassn 29

Gibbons v. Gibbons (Okla., 1968) 442 P.2d 482....... 6, 9

Globe Newspaper Co. v Superior Court (1982) 457

th | Serre etree rrr 12

Goldberg v. Kelly (1970) 397 U.S. 254, 269............ 12

Greene v. McElroy (1959) 360 U.S. 474, 496........... 12

Hochheiser v. Superior Court (1984) 161 Cal.App.3d

ree Sw ks errr Ter TT errr TTT Te 20

Holt v. Chenault (Ky., 1987) 722 S.W.2d 897....... 13, 23

I.C.C. v. Louisville & Nashville RR Co. (1913) 226

ik eeeeweerr rere yey Terr ner er. eee 12

Idaho v. Wright, U.S., October Term 1989, No.

69-260, cont. premted. 17 16790 q ... . onc. caccacnccens 25

In re Crowder (1985) 143 Mich.App. 666, 373

Che | eer eer errr reer Tee y 18

ie oe Glee Tae) ee ae Eve bene eetsee cee 29

Vill

INDEX TO CITATIONS - Continued

Page

In re Gibbons (1956) 245 N.C. 24, 95 S.E.2d 85....... 13

reef. CAFU, WRU) GOD PO BORG iw cnc ve ccensecss 28

In re S. S. (1982) 185 N.J.Super. 3, 447 A.2d 183..... 14

Jenkins v. Jenkins (1954) 125 Cal.App.2d 109, 269

8 reer eee e reer re rr tyr Tere Tree Te eee 13

Kennedy v. Kennedy (Okla., 1969) 461 P.2d 614........ 6

Lesauskis v. Lesauskis (1982) 111 Mich.App. 811, 314

fk eer ere reer TTT Tere Tree Terres 14, 16, 18

Lincoln v. Lincoln (1969) 24 N.Y.2d 270, 247 N.E.2d

a sas 65 cases CR awa kes keene ss baa ae eee en 14, 18, 19

Malone v. Malone (Okla., 1979) 591 P.2d 296...... 19, 23

Marbury v. Madison (1803) 1 Cr. 137, 2 L.Ed. 60..... 26

Marshall v. Stephanides (1973) 17 Md.App. 364, 302

EE UE 8a eRe Acta SAN Coe ah oeke api taShaeakons 14, 18

Maryland v. Craig, U.S., October Term, 1989, No.

G9-476, cert. granted 1/16/90 ...... 2... 0... cccnses 25

Meyer v. Nebraska (1923) 262 U.S. 390 ............... 24

Muraskin v. Muraskin (N.D., 1983) 336 N.W.2d 332 .14, 18

Oakes v. Oakes (1964) 45 Ill.App.2d 387, 195 N.E.2d

Nh Oe Pie Me Me DPSS 6 aa cde ones ccencnves 14, 18, 19

Ohio Bell Tel. Co. v. Pub. Util. Comm. (1937) 301 US.

People ex rel. Bernat v. Bicek (1950) 405 Ill. 510, 91

fe GE Peer ee Tee Teer ee a TR eT Teer eee 14, 29

INDEX TO CITATIONS - Continued

Page

Pierce v. Society of Sisters (1925) 268 U.S. 510........ 24

Pointer v.\Texas (1965) 380 U.S. 400.................. 25

Press-Enterprise Co. v. Superior Court (1984) 464

ee se cxXccavctci a ceree erence weneeeawes 12, 20-21

Press-Enterprise Co. v. Superior Court (1986) 478

Fa Mini ex tenn iedryciewradeesan cue seen eens 2, 20

Quilloin v. Walcott (1976) 434 U.S. 246............... 27

Raper v. Berrier (1957) 246 N.C. 193, 97 S.E.2d 782.... 13

Rea v. Rea (1952) 195 Ore. 252, 245 P.2d 884......... 13

Richmond Newspapers, Inc. v. Virginia (1980) 448 |

it eT eee err reer errr rr errr 12, 3

Roberts v. Russell (1968) 392 U.S. 293.............45. 25

Roe v. Conn (M.D.Ala., 1976) 417 F.Supp. 769........ 27

Rose v. Rose (W.Va., 1986) 340 S.E.2d 17............. 18

Santosky v. Kramer (1982) 455 U.S. 745............... 24

Smith v. Organization of Foster Families (1977) 431

fe | Meer rer rere ere Treee eT rere ere re a

Stanley v. Illinois (1972) 405 U.S. 645................ 24

State v. Wright (1989) 116 Idaho 382, 775 P.2d 1124,

Se ag err Terry Terre tree 26

Steph v. Steph, Okla.App., Div. I, No. 71166, Octo-

Bat 3G, TSRP CUOOCNOR) . «one acd cessdecaces 19, 22

Tschappat v. Kluver (lowa, 1971) 193 N.W.2d 79...... 13

INDEX TO CITATIONS - Continued

Page

Warehouse Market, Inc. v. Berry (Okla., 1969) 459

a yer rrr err ee ere eT Ce ee 2

Willingham v. Willingham (1941) 192 Ga. 405, 15

NEES Sec GF sek issocud yb bssctawernt he todreses 13

ARTICLES AND ANNOTATIONS

Annotation, Propriety of Court Conducting Private

Interview with Child in Determining Custody, 99

et Se nt.) eer rer Trey 12-13, 14, 24, 25

Article, Statutory Standards for the Involuntary Ter-

mination of Parenial Rights, by Orman Ketcham

and Richard Babcock, 29 Rutgers Law Rev. 530

Saha ssh dca ecu ekibeVeundenteciherdedtivaces 27

Comment, Recent Developments, XII, Parent and

a ee rrr rrr errr 28

Comment, Alternatives to ‘Parental Right’ in Child

Custody Disputes Involving Third Parties, 73 Yale

Ri SN IR EEG oo o's noo cc seas cee bese usweesess 28

Court Rutes

Uo Supreme Gourt Rule 17. ......6sccccecserses 1, 32

Lie. UMPUNNS COME TNE FOS ooo cece ccscscecsccevoes 3

Okinhome Appeliste Rule $.139........00cccscscsssevess 11

Oklahoma Appellate Rule 3.14.................s000. 11

Oklahoma Appellate Rule 3.15................+.005- 11

Oklahoma Appellate Rule 3.17..............22seeeeee 3

Federal Rule of Evidence No. 614................... 19

— =

—

In The

Supreme Court of the United States

October Term, 1989

CYNTHIA M. COLVERT

(now Gilbert),

Petitioner,

versus

JAMES ROBERT COLVERT, Jr.,

Respondent.}

—_—

—

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OKLAHOMA

La.

_—

COMES NOW Petitioner, CYNTHIA M. COLVERT,

now Gilbert (“Mrs. Gilbert,” “Cindy”), and for her instant

Petition for a Writ of Certiorari respectfully alleges and

avers as follows:

' The Caption lists all Parties to this instant action, both in

this Court and in the lower courts. The Attorney General of

Oklahoma is also being served under 28 U.S.C. 2403(a) because

of the possible involvement of 12 O.S., 1986 Supp., Sec. 1277.1

(renumbered in 1989 to 43 O.S.A. 113) in this matter.

THE DECISIONS BELOW

The action below was on a motion filed in April of

1986 by the Respondent, James R. Colvert, Jr. (“Dr. Col-

vert,” “Jim”), to modify the Parties’ decree of divorce

entered in 1976 by the District Court of Oklahoma

County, Oklahoma, in Case No. JFD-75-1675, James R.

Colvert, Jr., vs. Cynthia M. Colvert, later affirmed in Colvert

v. Colvert (Okla., 1977) 568 P.2d 623, whereby the Parties’

minor child, James Robert Colvert, III (“Jay”), then three,

was placed in the custody of his mother, the Petitioner

herein. [That original divorce and custody decision, and

subsequent affirmance, is not challenged by the instant

Petition.] The Respondent’s said 1986 Motion to Modify

[Custody] sought to transfer custody of the child from the

Petitioner mother (Mrs. Gilbert) to himself.

That Motion to Modify was granted by the District

Court of Oklahoma County on September 17, 1986, and is

the subject of the instant Petition. The District Court's

Oral Pronouncement of Judgment is reproduced at

Appendix A hereto, and the Journal Entry thereof, filed

on April 9, 1987, is reproduced hereto at Appendix B.?

The intermediate Court of Appeals of the State of

Oklahoma, Division III, affirmed in the unreported Col-

vert v. Colvert, Appeal No. 67,525, on January 24, 1989,

Appendix C hereto. A timely Petition for Rehearing filed

by the Petitioner on February 13, 1989, was denied by the

Court of Appeals on March 9, 1989, Appendix D. The

Supreme Court of the State of Oklahoma denied review

on November 1, 1989, Appendix E. Under Oklahoma

2 Under Oklahoma practice, the oral pronouncement is

deemed to be “the” judgment, while the formal journal entry is

but a “record” thereof. Warehouse Market, Inc. v. Berry (Okla.,

1969) 459 P.2d 853.

practice, further petitions for rehearing or reconsidera-

tion are not allowed.3 This instant Petition is taken from

that denial of review.

JURISDICTION TO ENTERTAIN THIS PETITION

As noted above, the Oklahoma Supreme Court

denied Mrs. Gilbert’s petition for State certiorari on

November 1, 1989, which denial exhausted the Peti-

tioner’s State-court remedies (see footnote 3, supra).

Therefore, jurisdiction to review the constitutional

aspects of this matter is conferred upon the Supreme

Court of the United States by 28 J.S.C. 1257(a), 28 U.S.C.

2101(c), and U.S. Supreme Court Rule No. 20.2.

,’

LEGAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitu-

tion states, in relevant part, that: A

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial

...and...to be confronted with the witnesses

against him...

The Fourteenth Amendment to the United States

Constitution states, in relevant part, that:

. . . No State shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any

State deprive any person of life, liberty, or prop-

erty, without due process of law...

Section 1277.1 to Title 12 of the Oklahoma Statutes,

1986 Supp. (now renumbered as 43 O.S.A. 113), states, in

relevant part, that:

3 Oklahoma Appellate Rule 3.17, 12 O.S.A., Ch. 15, App. 3.

§ 1277.1. Preference of Child.

In any action for divorce, legal separation, or

annulment in which a court must determine cus-

tody ... the child may express a preference as to

which of its parents the child wishes to have

custody...

If the child expresses a preference or gives testi-

mony, such preference or testimony may be

taken by the court in chambers, with or without

the parents or other parties present, at the

court’s discretion. If attorneys are not allowed to

be present, the court shall state, for the record,

the reasons for their exclusion. At the request of

either party, a record shall be made of any such

proceeding in chambers.4

STATEMENT OF MATERIAL FACTS

A. The Procedural Due Process Issues

The Parties hereto married each other during their

undergraduate days at the University of Oklahoma. Jim

Colvert was later admitted to the O.U. Medical School, at

4 Petitioner will candidly disclose that there may be some

question over how “directly” this statute is involved herein.

The “in camera” portions of 12 O.S., 1986 Supp., Sec. 1277.1

were added by the 1986 Legislature, see Oklahoma Session

Laws, 1986, Ch. 196, p. 591. That amendment was enacted on

May 29, 1986, but carried an effective implementation date of

November 1, 1986 — whereas the trial in this case took place on

September 15-17 of 1986. However, as is evident from the State

affirmance herein, Paragraphs 5-6, Appendix C, App., pp.

14-15, the Oklahoma Court of Appeals appears to have relied

on the “rationale” of this Statute in rejecting the Due Process

contentions advanced herein.

Because of the uncertainty over Section 1277.1’s involve-

ment herein, the Petitioner is serving notice of this action also

upon the Attorney General of Oklahoma pursuant to 28 U.S.C.

2403(a).

which time his then wife, Cindy, went to work to put him

through his medical training. One year before Jim was to

graduate, he filed for divorce, which was eventually

granted to Cindy, who also got custody of the Parties’

then-infant son, Jay, the subject of the present dispute.

For further background, see Colvert v. Colvert (Okla.,

1976) 568 P.2d 623.

After that divorce, the Petitioner mother left Okla-

homa City and returned to her native Tulsa, where, as a

single, working mother she commenced to bring up Jay

by herself. In 1983, she married one Fred Gilbert, a patent

attorney practicing in Tulsa, thereby giving Jay a step-

father, and at which time Cindy quit work to become, for

the first time, a full-time mother for her child. [The Gilb-

erts have since had two children, born in 1985 and in

1987.)

By all accounts and evidence developed at the cus-

tody (or more properly, at the “modification”) trial held

in September of 1986, the Petitioner mother had done an

outstanding job of parenting Jay, as admitted by the

Respondent father’s own forensic psychologist, Trial

Transcript (“Tr.”), p. 146, who also admitted that the boy

was virtually a model child, Tr., 139-145. In fact, even the

Respondent father conceded that the Petitioner mother

had done an exemplary job of raising Jay, Tr., 66.

Nevertheless, the Respondent father filed his motion

to modify custody decree on April 14, 1986, and won that

modification action at the trial conducted on September

15-17, 1986. As might be expected from the evidence

summarized in the preceding paragraph, the Respondent

father’s case for seizing the child was not the strongest.

In essence, he had only one argument for modification,

namely, that he had succeeded in prevailing upon the

child to voice a preference for moving over to his father’s

household. That, of course, was not enough under

Oklahoma law,> and especially not on modification (as

opposed to initial award) of custody.® Moreover, the only

justification or basis for the child’s expressed preference

was, at least as far as the open-court testimony went, little

more than his juvenile perception of more “fun” to be had

in his father’s household, Tr., 41-43, 50, 64-65, 100, 125,

178, 250-251, 328-329. Related to this consideration was

also, perhaps, the fact that the Petitioner mother, while

very loving of her child, had (for that very reason!) also

been reasonably firm with him throughout his childhood,

never shrinking from applying necessary discipline on an

“as needed” basis, Tr., 189, 240-242, whereas Dr. Colveri,

on the other hand, had apparently never disciplined his

son, Tr., 52.

Under these essentially undisputed facts and the

applicable Oklahoma case-law, the Respondent father’s

motion to modify should have been soundly denied.

But then, the “very integrity of the fact-finding pro-

cess”? got compromised: the trial judge decided, on his

own motion, to interview a central witness secretly in

chambers. Naturally, the Petitioner mother’s attorneys

vigorously objected, but His Honor summarily overruled

those objections, and declared that conventional pro-

cedures would not apply because, as the Honorable

United States Justices have undoubtedly perceived by

now, it was the child himself whom the trial court was

calling as a witness, and the trial court felt that adherence

to conventional procedure might possibly tend to make

5 See Davis v. Davis (Okla., 1960) 355 P.2d 572, 574, Kennedy

v. Kennedy (Okla., 1969) 461 P.2d 614, 615, and Duncan v.

‘Duncan (Okla., 1969) 449 P.2d 267, 269.

6 See Gibbons v. Gibbons (Okla., 1968) 442 P.2d 482, and

Boatsman v. Boatsman (Okla., 1985) 697 P.2d 516.

7 See Berger v. California (1969) 393 U.S. 314, 315, and

related cases, discussed at p. 25, below.

the child feel “ill at ease,” which, in His Honor’s evident

view, simply overrode all other considerations. Tr.,

215-217.

His Honor’s “ill at ease” sentiments, however, were

neither evidentiary nor individualized in the sense of

being based on any such assertion by the child himself

(the trial judge had not even seen Jay as yet), or by the

testimony of any of Jay’s parents or stepparents, or by

any psychological or other expert or witness. Instead, the

trial court’s “ill at ease” justification for cloaking the

child’s testimony behind the veil of in camera secrecy was

merely an assumption to that effect. Tr., 216.

This exchange between the trial judge and counsel,

therefore, raised the open-trial and confrontation/cross-

examination Due Process issues presented by the instant

Petition.

Counsel’s right to cross-examination, after being thus

denied, was instead “simulated” by the trial court’s

allowing counsel for both sides to write down specific

factual questions to be submitted to the court for His

Honor’s in camera propounding to the child — questions

which went to several pages of “interrogatories.” It is

therefore evident from this mode of indirect “cross-exam-

ination,” as well as from the transcript of the child’s own

testimony,® that the in camera “interview” between the

trial judge and the child went far beyond the child’s

naked expression of a preference (which was not even in

dispute), and actually delved rather deeply into the

child’s supposed “factual” bases for his expressed

preference.

8 Unsealed a year later by the State Supreme Court. Order

of September 16, 1987, Appendix F hereto.

And, to compound this secret-testimony problem

even further, His Honor, after emerging from his hour-

long in camera interrogation of the child, then immediately

announced his decision to transfer custody — without

even so much as summarizing the substance of the child’s

secret testimony, and thereby without giving the parent

litigants any opportunity whatsoever to explain or rebut,

even by evidence independent of the child, whatever

adverse it was that the child had testified to in camera.

Indeed, far from even summarizing the child’s testimony,

the trial court instead went so far, again on its own

motion, as to order the transcript of the child’s testimony

sealed (so as to preclude appellate review of His Honor’s

decision?).? Thus, this right-of-rebuttal component of Due

Process herein was not violated, and therefore did not

arise, until the very conclusion of the trial, and wherefor

the Petitioner’s only effective remedy was to appeal.

[As noted in footnote 8, supra, it was not until a year

after the trial had concluded that this Petitioner finally

learned, pursuant to the Oklahoma Supreme Court’s

order to unseal the transcript, what her child had testified

to. For openers, the Petitioner mother only then learned

that His Honor had not bothered to place the child under

oath. More disturbing, of course, was reading what utter

9 In his Oral Pronouncement of Judgment of September 17,

1986 (App. A, p. 2) and in the formal Journal Entry of Judg-

ment (App. B., p. 7), His Honor had stated that he would

unseal the transcript if an appeal should be taken. On Novem-

ber 13, 1986, however, His Honor reneged on that assurance:

he instead declared that no one (not even counsel!) was going

to “get away with” an appeal as a “pretext” for “snooping”

into the sealed transcript. Transcript of November 13, 1986, pp.

14-20. Therefore, the Petitioner’s principal brief on appeal was

necessarily delayed by the year which it took the Oklahoma

Supreme Court to order interlocutorily the unsealing of the

transcript, see footnote 8, supra.

“factual” nonsense the Petitioner’s child had actually tes-

tified to. However, only one such glaring “factual” mis-

assertion by the child will (or need) be mentioned in this

Petition — the utterly astounding “coached” testimony

that: there was actually more discipline in the child’s

father’s house; that he (Jay) knew that his mother was too

lenient with him; and that he realized that he truly

needed his father’s firmer hand(!); Transcript of Jay’s

Testimony, pp. 35, 37. And that secret testimony was

clearly prejudicial: in a subsequent proceeding, Judge

Croy expressly stated that it was that [secret!] testimony

as much as anything which caused him to sustain Dr.

Colvert’s motion to modify custody, Transcript of

November 13, 1986, p. 15.]

The Petitioner mother vigorously objected to the

foregoing Federal Due Process violations at all levels of

the Oklahoma appellate judiciary, which, however,

rejected her said contentions. Appendices C (App., pp.

14-15, paragraphs 5-6), D, and E.

B. The Substantive Due Process Issue

The second broad issue presented by this Petition —

that of the violation of Due Process by reason of the

vagueness and overbreadth of the “best interests of the

child” test - arose not at trial, but on appeal, by the Court

of Appeals’ surprise adoption of that standard for affir-

mance. To make a long story short, the “best interests of

the child” is not the Oklahoma standard for modification

(as opposed to initial award) of child custody,'° but,

somehow, the “best interests” test nevertheless was

viewed by the Court of Appeals as controlling the affir-

mance herein:

10 See Gibbons v. Gibbons (Okla., 1968) 442 P.2d 482, and

Boatsman v. Boatsman (Okla., 1985) 697 P.2d 516.

In her first proposition of error, Appellant

asserts the insufficiency of Appellee’s proof of

the requisite elements for a change of custody.

See, Gibbons v. Gibbons, 442 P.2d 482, 485 (Okl.

1968). However, one who challenges the Trial

Court’s determination of custody must put forth

evidence presented below upon which he relies

to establish the Trial Court’s error, and must

affirmatively demonstrate how such evidence

shows the Trial Court’s decision to have been

contrary to the children’s best interests. Gorham

v. Gorham, 692 P.2d 1375, 1378 (Okla. 1984). Ulti-

mately, the Trial Court’s determination of best

interests of children will not be disturbed absent

a showing of abuse of discretion. Gorham v.

Gorham, 692 P.2d 1375, 1378. We have reviewed

the record and briefs, and find that Appellant

has failed to demonstrate how the Trial Court’s

adjudication of custody is contrary to the child’s

best interests.

Appendix C, paragraph 4, App., pp. 13-14. Therefore,

whether rightly or wrongly from the standpoint of Okla-

homa law, this case was affirmed on the basis of the

generalized and subjective initial-award “best interests of

the child” test; and since this issue was not interjected

into these proceedings until the promulgation of the

Court of Appeals’ affirmance herein, there was nothing

short of this Petition to the United States Supreme Court

that the Petitioner mother could do about the “best inter-

ests” test’s first appearance herein at the appellate level."!

11 Under Oklahoma practice, a civil appellant appeals not

to an intermediate Court of Appeals, but directly to the State

Supreme Court. If the Supreme Court deems the appeal to be

of less than primary importance, the Supreme Court then

“downloads” the appeal, with the record and the briefs, to one

of Oklahoma’s four Courts of Appeals. If a litigant feels

aggrieved by a decision of the Court of Appeals, he may then

(Continued on following page)

REASONS FOR GRANTING THE WRIT

Part A: The In Camera Interview Issues

By conducting what turned out to be the critical

evidentiary stage of the trial in secret, the trial court

denied the Petitioner mother a number of interrelated

and overlapping albeit conceptually distinct procedural

Due Process rights. These rights include: the right to an

open and public trial; the right of confrontation and

cross-examination of the adverse witness; and the right of

rebutting that witness’s testimony by independent

evidence.

With this delineation of what Due Process rights

were denied, let us now move on to a consideration of the

relevant criteria for review from Supreme Court Rule 17.

1. A State court... has decided a Federal question

in a way in conflict with applicable decisions of

this Court.

Rather than belabor the obvious, let Petitioner satisfy

the foregoing criterion with the following tabulation:

(Continued from previous page)

petition the Oklahoma Supreme Court for discretionary review

by certiorari. However, that petition for certiorari back to

Supreme Court may not argue the merits. Oklahoma Appellate

Rules 3.13-3.14, 12 O.S., Ch. 15, App. 3. Moreover, even if and

when review is granted by the State Supreme Court, the liti-

gants are normally still bound by their briefs as originally

submitted to the Supreme Court before that Court’s “down-

ioading” of the appeal to a Court of Appeals. Oklahoma

Appellate Rule 3.15. Thus, by this quirk of Oklahoma appellate

practice, there is really no way that a litigant can directly

attack a novelty injected into the case by a Court of Appeals -

short, perhaps, of petitioning the United States Supreme Court

for review.

a. Open and Public Trial

Press-Enterprise Co. v. Superior Court (1984) 464 U.S.

501, 509-513; Press-Enterprise Co. v. Superior Court (1986)

478 U.S. 1, 13-15; Richmond Newspapers, Inc. v. Virginia

(1980) 448 U.S. 555; Globe Newspaper Co. v. Superior Court

(1982) 457 U.S. 596, 606-607.

b. Confrontation and Cross-Examination

Coy v. lowa (1988) ___ U.S. __, 101 L.Ed.2d 857, 108

S.Ct. 2798; Goldberg v. Kelly (1970) 397 U.S. 254, 269;

Greene v. McElroy (1959) 360 U.S. 474, 496; Ohio Bell Tel.

Co. v. Pub. Util. Comm. (1937) 301 U.S. 292, 300-303.

c. Rebuttal

I.C.C. v. Louisville & Nashville RR Co. (1913) 226 U.S.

88, 93-94; Carter v. Kubler (1943) 320 U.S. 243, 246-247.

Given the foregoing precedents, the very proposition

of a trial court’s allowing a critical witness to testify in

secret, and thereafter sealing the transcript so that even

counsel doesn’t know what it is that his client must rebut,

would seem so fundamental and self-evident a denial of

Due Process as to evoke a universal and unanimous

condemnation of the practice. But that, astoundingly, is

not the case. So, that brings us to consideration of the

next Rule 17 criterion:

2. A State court of last resort has decided a Federal

question in a way in conflict with the decisions

of other State courts of last resort.

a. The Confrontation/Cross-Examination and

the Open Trial

The applicability and satisfaction of this criterion for

review is amply demonstrated by the Petitioner mother’s

citation to the Honorable Supreme Court of the Annota-

tion, “Propriety of Court Conducting Private Interview

with Child in Determining Custody,” 99 A.L.R.2d 954

(1965), which collects the various State rulings on the

precise question at bar, namely, the constitutionality vel

non of the im camera interview practice, at least as applied

to child custody contests. Astoundingly, this Annotation

tabulates a sharp, divisive and embarrassing conflict in

the State reports on these precise Federal Due Process

questions, questions which therefore literally cry out for

resolution by the United States Supreme Court.

Petitioner’s own research discloses that the following

State decisions have voided in camera interviews as

unconstitutional, and which cases the Oklahoma decision

at bar therefore conflicts with: Gennarini v. Gennarini

(1984) 2 Conn.App. 132, 477 A.2d 674, Holt v. Chenault

(Ky., 1987) 722 S.W.2d 897, Ex Parte Berryhill (Ala., 1982)

410 So.2d 416, 418, Ex Parte Wilson (Ala., 1984) 450 So.2d

104, Raper v. Berrier (1957) 246 N.C. 193, 97 S.E.2d 782,

783-784, In re Gibbons (1956) 245 N.C. 24, 95 S.E.2d 85,

Cook v. Cook (1969) 5 N.C.App. 652, 169 S.E.2d 29, Tschap-

pat v. Kluver (lowa, 1971) 193 N.W.2d 79, 80, Duncan v.

Duncan (Mo.App., 1975) 528 S.W.2d 806, 808-809, Jenkins

v. Jenkins (1954) 125 Cal.App.2d 109, 269 P.2d 908, 910,

Baker v. Vidal (Tex.Civ.App., 1962) 363 S.W.2d 158, 159,

and Rea v. Rea (1952) 195 Ore. 252, 245 P.2d 884, 885-887,

see also Muraskin v. Muraskin (N.D., 1983) 336 N.W.2d

332, 335 (fn. 2), Commonwealth ex rel. Morales v. Morales

(1972) 222 Pa.Super. 373, 294 A.2d 782, 783, Gerald G. v.

Theresa G. (1981) 284 Pa.Super. 498, 426 A.2d 157, 161, and

Willingham v. Willingham (1941) 192 Ga. 405, 15 S.E.2d 514,

516-517.

Of these, Petitioner submits the following as the bet-

ter-reasoned: Gennarini v. Gennarini (1984) 2 Conn.App.

132, 477 A.2d 674, Holt v. Chenault (Ky., 1987) 722 S.W.2d

897, Ex Parte Berryhill (Ala., 1982) 410 So.2d 416, 418, In re

Gibbons (1956) 245 N.C. 24, 95 S.E.2d 85, Commonwealth ex

rel. Morales v. Morales (1972) 222 Pa.Super. 373, 294 A.2d

782, 783, and see also footnote 2 to Muraskin v. Muraskin

(N.D., 1983) 336 N.W.2d 332, 335. And of the cases hold-

ing the contrary, Petitioner likewise offers the following

as best stating the opposite rule: Oakes v. Oakes (1964) 45

Ill. App.2d 387, 195 N.E.2d 840, 99 A.L.R.2d 949,!2 Callen v.

Gill (1951) 7 N.J. 312, 81 A.2d 495,!3 Lincoln v. Lincoln

(1969) 24 N.Y.2d 270, 247 N.E.2d 659, Marshall v. Step-

hanides (1973) 17 Md.App. 364, 302 A.2d 682, and Les-

auskis v. Lesauskis (1982) 111 Mich.App. 811, 314 N.W.2d

767.

Essentially, this conflict over the applicability of Due

Process of Law vel non to custody contests can be said to

lie between the “constitutionalist” decisions (couched in

predictable Due Process phraseology) and what we might

call the “sociological” pronouncements (“modern psychi-

atry,” Oakes v. Oakes (1964) 45 Ili. App.2d 387, 195 N.E.2d

840, 844), “child psychology,” Lincoln v. Lincoln (1969) 24

N.Y.2d 270, 247 N.E.2d 659, 660, or the “ill at ease” child,

Colvert v. Colvert, at bar).

Since we are merely at the “petitioning” stage in this

matter, presenting the two extremes on this Due Process

issue may be proper:

The principal issue in this appeal concerns the

propriety of the trial court’s interview in cham-

bers with the seven year old child of the parties,

in the absence of the parties and their counsel

and over the objection of the defendant. * * *

'2 Oakes v. Oakes was therefore the “lead” case for the

Annotation at 99 A.L.R.2d 954. However, Oakes is no longer the

law in Illinois, DeYoung v. DeYoung (1978) 62 Ill.App.3d 837,

379 N.E.2d 396, 398-399 — if indeed Oakes ever truly was the

law in Illinois, see People ex rel. Bernat v. Bicek (1950) 405 III.

510, 91 N.E.2d 588, 595-597.

'3 New Jersey now allows parents to observe their chil-

dren’s in camera testimony through closed-circuit television. In

re S. S. (1982) 185 N.J.Super. 3, 447 A.2d 183.

We find ourselves in accord with those courts

which have prohibited such a practice. We con-

clude that in the absence of the consent of the

parties to such a procedure it is a violation of

due process of law for the trial court to inter-

view a minor child in the absence of the parties

and their counsel. * * *

... [S]uch a practice carves out the only place in

our jurisprudential landscape in which, without

the parties’ consent, the fact-finder deciding the

ultimate merits of a controversy is permitted to

consider evidence which is presented to it in the

absence of the parties or their counsel. Ordi-

narily, so-called “secret evidence” has long been

thought to be constitutionally invalid. * * *

Surely such a legally extraordinary and unique

procedure as a private interview between child

and factfinder, involving as it does a radical

departure from “the usuai and ordinary pro-

cedures of a proper and orderly hearing” on

such an “inherently fact-bound” determination

. must carry with it compelling reasons of

necessity and value to the fact-finding process

in order to command constitutional approval.

Our examination of the reasons and values pos-

ited tn favor of such a procedure does not per-

suade us that they justify such a departure.

The principal justifications advanced for the

practice are the necessity of ascertaining the

child’s preferences and feelings to the trial

court’s very sensitive determination of custody

or visitation, and the need to obtain that infor-

mation in a way which will maximize the child’s

freedom of expression and avoid the trauma of

requiring an expression of those preferences and

feelings in the ordinary adversarial setting or in

the presence of the parents about whom the

child is expressing them... These justifications,

however, rest on several assumptions which we

believe to be of sufficient doubt so as not to

justify the practice; and they ignore other factors

which we believe to be of sufficient weight to

require its invalidity.

Gennarini v. Gennarini (1984) 2 Conn.App. 132, 477 A.2d

674, at 474-476. By contrast, the “sociological” approach

to the dilution of Due Process felt to be justified because

of the involvement of children is no less predictable:

As a general rule, this Court has repeatedly

suggested that a child of tender years express

his preference during a private conference with

the judge .. . The child, who has already experi-

enced the emotional trauma of his parents’ sep-

aration, should be relieved from the additional

distress resulting from cross-examination and

testifying before the parents...

Plaintiff argues that some nebulous legal right

is violated where the trial court conducts the

conference without the presence of the parties

or counsel. Plaintiff cites no authority in sup-

port of this contention...

Furthermore, plaintiff has failed to supply this

Court with one good reason for requiring the

presence of counsel at the meeting. The scope

of the conference is limited to determining the

child’s preference only and does not include dis-

cussion of other factors germane to the custody

dispute . . . Consequently, the utility of the

presence of counsel is slight...

Similarly, we hold that the best interest of the

child outweighs any diminution of the paren-

tal right to appeal that may result from failure

to record the conversation.

Lesauskis v. Lesauskis (1982) 111 Mich.App. 811, 314

N.W.2d 767, 768-769 (boldface emphasis supplied, italics

in original).

Clearly, this embarrassing spectacle of irreconcilable

conflict among the State higher courts on a frequently-

raised question of Federal constitutional law calls out for

the United States Supreme Court’s long-overdue resolu-

tion thereof.

b. The Separate Problem of Rebuttal

Let the Petitioner mother but briefly explain her dis-

tinction between the right to an open and public trial, and

to confrontation and cross-examination, on the one hand,

and the supplemental but somewhat distinct right to

rebut or explain adverse testimony, on the other. Let the

Petitioner mother illustrate this distinction with the judi-

cial procedure in increasing vogue in child-abuse cases,

of “shielding” the minor victim of child abuse from

direct, same-room, eye-to-eye confrontation with his or

her abuser, or of allowing the child’s report of abuse to be

established by the testimony of the examining physician,

social worker, or some such.

Conceding, however, the constitutionality of such

“shields” (as this Petitioner mother of two small children

personally tends to), the fact remains that even in juris-

dictions erecting such “shields,” the accused still knows

what the child said or is saying. In NO jurisdiction in

America does a child-abuse “shield” go so far as to with-

hold the child’s direct or indirect testimony from scrutiny

by the accused. Thus, whether the accused only hears the

child testifying from behind a screen, or over a close-

circuit television loudspeaker, the accused still hears

every word the child says; and even if the child is

shielded from the courthouse altogether, and “testifies”

through an adult in such a way that the accused can’t

actually cross-examine the child, nevertheless, the

accused still hears what it is that the child supposedly

said.

In other words, “shielded” testimony is not the same

thing as SECRET testimony (meaning testimony kept

secret!) — for “shielded” testimony at least allows the

affected litigant some right of rebuttal, whereas secret

testimony, by its very nature, clearly does not.

Mindful of this distinction between “shielded” and

truly secret testimony, even the “sociological” cases cited

above, while upholding the constitutionality of allowing

children to testify privately, have nevertheless “hedged”

their uneasiness over the Due Process problems involved

by also ruling that whenever a child in a custody case

does testify in camera, the parent-litigants must then be

advised of their child’s testimony. Thus, in Maryland the

transcript of the child’s testimony must be read in full to

the parents before they can be required to rest, Marshall v.

Stephanides (1973) 17 Md.App. 364, 302 A.2d 682, 685,

while the other “in camera” States view Due Process as

requiring that at least the substance of the children’s

testimony be divulged to the parent-litigants, Rose v. Rose

(W.Va., 1986) 340 S.E.2d 176, 179, Callen v. Gill (1951) 7

N.J. 312, 81 A.2d 495, 498-499, Oakes v. Oakes (1964) 45

Ill.App.2d 387, 195 N.E.2d 840, 844, Lincoln v. Lincoln

(1969) 24 N.Y.2d 270, 247 N.E.2d 659, 661, and see also

Muraskin v. Muraskin (N.D., 1983) 336 N.W.2d 332, 335 (fn.

2).

In other words, but for this instant Oklahoma deci-

sion, there is NO Anglo-American decision anywhere,

civil or criminal, upholding, as against a Due Process

challenge, a trial court’s depriving a parent of custody

in the face of the court’s BOTH excluding parents and

counsel from the in camera interview AND denying the

parent-litigants even so much as a summary of their

child’s testimony! Nor is the case of Lesauskis v. Lesauskis,

supra, 111 Mich.App. 811, 314 N.W.2d 767, to the con-

trary. That case specified, in the portion quoted above at

p. 16, that the in camera interview is applicable only with

children “of tender years,” and only then to express their

naked preference, not to testify to disputed or disputable

facts — as expressly clarified in the subsequent Michigan

decision of In re Crowder (1985) 143 Mich.App. 666, 373

N.W.2d 180, 181-182.

Yet, that forbidden elicitation of disputable “facts” in

secret — and later kept secret by the trial court! — is

19 ‘

precisely what happened at trial in this case, as expressly

affirmed by the appellate courts of Oklahoma. Therefore,

this instant case presents the extreme “dilution” of Due

Process which the in camera interview process is capable

of wreaking, and for that reason this Petition presents a

most appropriate vehicle for testing just how far pro-

cedural Due Process may be sacrificed on the altar of the

so-called “best interests of the child.”

c. The Decisive Issues Narrowed

The problem with the in camera interview’s constitu-

tionality vel non appears to arise not from the fact that

that procedure is resorted to primarily in custody dis-

putes, for even under Oklahoma law, a divorce judge’s

reception of an adult's secret testimony in camera is per se

unconstitutional and reversible. Malone v. Malone (Okla.,

1979) 591 P.2d 296, Steph v. Steph, Okla.App., 1989, unre-

ported, Appendix F.14 Rather, the problem appears to

arise from the fact that it is a child who is the witness -

and the justification for invoking a non-Due Process pro-

cedure, when stated, is typically no more than a vague

reference to “modern psychiatry” (Oakes v. Oakes, supra,

195 N.E.2d at 844), “child psychology” (Lincoln v. Lincoln,

supra, 247 N.E.2d at 660), or some such (e.g., Due Process

could make a child “ill at ease”). Yet, these vague allu-

sions to “child psychology” as somehow “superseding”

'4 This Steph v. Steph, Okla.App., Div. 1, No. 71166, October

10, 1989 (unreported), has recently held 12 O.S.A. 2614(A),

which is essentially identical to Federal Rule of Evidence No.

614, to guarantee the right of cross-examination, even in a child-

custody dispute, of any witness listened to by the trial judge. A

copy of the relevant pp. 3-5 of the slip opinion in Steph is

reproduced at Appendix F hereto. The Advisory Committee's

Note to Federal Rule of Evidence 614 also emphasizes that,

“The right to cross-examine, with all it implies, is assured.”

Due Process have not gone unchallenged elsewhere in the

lower courts:

These [sociological] justifications, however, rest

on several assumptions which we believe to be

of sufficient doubt so as not to justify the prac-

tice [of in camera interviews].

Gennarini v. Gennarini, supra, 2 Conn.App. 132, 477 A.2d

674, at 676 (1984). Accord:

In our research of the professional literature on

the matter, we have not discovered any study,

based on empirical data, which deals with the

damaging psychological effect of giving testi-

mony in the piesence of the jury and the

accused, on the sexually abused child. Rather,

we found that such literature merely contains

generalized statements to this effect.

Hochheiser v. Superior Court (1984) 161 Cal.App.3d 777, 208

Cal.Rptr. 273, 283.

So, the question at bar boils down to: does the sup-

posed science of psychology per se justify suspending or

altering the established procedural safeguards of Due

Process of Law merely because it is a child who is called

as a witness? Or, on the other hand, are the Due Process

requirements of open judicial proceedings and of con-

frontation/cross-examination of adverse witnesses so

much an integral part of the “integrity of the fact-finding

process” as to inflexibly forbid any tampering therewith

even to accommodate an occasional under-age witness?

As seen from the custody-contest decisions cited above,

rarely is any middle ground even mentioned.

Therefore, this Petitioner would invite the Supreme

Court to take the opportunity presented by this case to

consider engrafting a middle ground upon the custody

contest situation, by transplanting thereto the more flex-

ible approach of this Honorable Court’s criminal-law

decisions of Coy v. lowa (1988) __ U.S. __, 101 L.Ed.2d

857, 108 S.Ct. 2798, Press-Enterprise Co. v. Superior Court

(1984) 464 U.S. 501, 509-513, and Press-Enterprise Co. v.

Supertor Court (1986) 478 U.S. 1, 13-15, namely, that Due

Process is presumed to be violated by any deviation from

traditional confrontation/cross-examination, rebuttal,

and open-court procedures, but that that presumption

may be overcome by the trial court’s making individu-

alized findings, based on competent, on-the-record evi-

dence, that particular emotional harm or psychic trauma

would result to a particular witness if forced, under the

circumstances of the case and the witness’s expected

testimony and cross-examination, to undergo conven-

tional open-court confrontational procedures.

This proposed presumption favoring conventional

Due Process procedures in the absence of an individu-

alized finding of emotional harm based on competent

evidence would undoubtedly require at least a remand in

this case: The child involved herein was 13 at the time of

trial,1° was a very good student and was in excellent

mental, emotional and physical health. Moreover, the

Petitioner mother was not exactly on trial for “abusing”

Jay. Even the so-called “embarrassment” factor was

absent or muted in this case, as this boy had already

expressed to both his parents a preference for a “change

of scenery.” Under these facts, then, the Honorable Dis-

trict Judge’s naked assumption that the child might feel

“ill at ease” as a justification for dispensing with Due

Process was clearly insufficient to rebut the presumption

of Coy v. lowa and the Press-Enterprise cases.

This proposed “importation” of the criminal-law Coy

v. lowa raises another important question which should

15 The same age, incidentally, as of the prosecutrix in Coy

v. lowa, supra. Similarly worthy of some mention is the fact

that Oklahoma’s statutory child-witness “shield” laws specify

twelve years and below as the age for invoking those

“shields.” 12 O.S.A. 2803.1, and 10 O.S.A. 1147-1148.

be addressed by the Supreme Court, namely, To what

extent are the criminal-law guarantees of the Bill of

Rights, or at least the essential substance thereof, also

applicable to civil litigation because of the Fourteenth

Amendment’s Due Process Clause? Actually, the Peti-

tioner has already cited a number of civil U.S. Supreme

Court cases in support of her confrontation/cross-exam-

ination and her rebuttal contentions under Criterion 1,

supra, so that leaves for further discussion herein essen-

tially the open and public trial issue. Regarding this issue

too, the U.S. Supreme Court “newspaper” cases cited

under Criterion 1 are also civil cases, although they arose

from the criminal context and the actual holdings therein

only go so far as to say that the Sixth Amendment guar-

antees open and public trials in ciiminal prosecutions.

Nevertheless, as noted by Chief justice Burger in Rich-

mond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555:

Whether the public has a right to attend trials of

civil cases is a question not raised by this case,

but we note that historically both civil and crim-

inal trials have been presumptively open.

Id., 448 U.S. at 580, footnote 7, and noting an abundance

of historical authority. Therefore, this Petition does pre-

sent the Court with the opportunity to confirm Chief

Justice Burger’s sentiments in Richmond Newspapers,

supra.

And that brings us to another aspect of this civil-

criminal dichotomy presenting itself for clarification

herein, namely, the question of prejudice. In this case, the

Oklahoma appellate courts employed what might be

called the “other evidence” concept of “harmless error”

to confirm its affirmance herein:

Even admitting arguendo the error of the Trial

Court in this respect, we find ample evidence in

[the] record apart from the in camera testimony

supporting findings of substantial change of

condition, and that the child’s best interests

would be better served by awarding custody to

Appellee.

Appendix C, paragraph 7, App., p. 17. This foregoing

“other evidence” test for “harmlessness” is, of course, the

absolute contrary to the standard laid down in Fahy v.

Connecticut (1963) 375 U.S. 85,6 reaffirmed in Chapman v.

California (1967) 386 U.S. 18, 23-24; and Chapman's pre-

sumption of prejudice was adopted as proper in the

recent Coy v. lowa (1988) ___- U.S. __, 101 L.Ed.2d 857, 108

S.Ct. 2798. However, the only diminution of the right of

confrontation suffered by that defendant was merely that

of looking at the 13-year-old prosecutrix, who otherwise

testified and was cross-examined in open court. In this

case, the denial of confrontation and of open proceedings

resulted in the adverse testimony’s total secrecy and the

quashing of any conceivable right to rebut same. In this

latter circumstance, and even in a child custody dispute,

the resulting prejudice, according to some authority,

appears to be that of prejudice per se, as opposed to

merely presumptive prejudice: Holt v. Chenault (Ky., 1987)

722 S.W.2d 897, 899, and, ironically, Malone v. Malone

(Okla., 1979) 591 P.2d 296, 299, and Steph v. Steph,

Okla.App., 1989, Appendix G hereto, App. p. 23.

Thus, this case presents the Supreme Court with two

additional options — prejudice per se, and presumptive

prejudice — above and beyond the “other evidence” test.

This question too calls for resolution by the Supreme

Court.

16 “We are not concerned here with whether there was

sufficient evidence on which the petitioner could have been

convicted without the evidence complained of. The question is

whether there is a reasonable possibility that the evidence com-

plained of might have contributed to the conviction.” 386 U.S.,

at 86-87 (emphasis added).

3. A State court... has decided an important

question of Federal law which has not been, but

should be settled by this Court...

Legal questions which affect a large number of citi-

zens may properly claim some priority on the Supreme

Court’s attentions. This case clearly falls within that cate-

gory. Consider: most Americans eventually marry, and of

those who do, most will eventually have children. But,

sadly, the divorce rate in the United States is beginning to

approach fifty per cent of all marriages. That means a lot

of divorces, and a lot of those divorces, either in the

original actions, or later on modification motions, involve

disputes of child custody. While this Petitioner can cite no

precise statistics to the Court, it is nevertheless abun-

dantly obvious that, next after traffic, small claims and

the like, most Americans who ever have to go to court do

so in domestic relations matters — which are most often

litigated when there are minor children involved. Clearly,

that means a lot of cases much like the present one, and

surely the cases cited in the Annotation at 99 A.L.R.2d

956, discussed earlier, involving precisely the Due Pro-

cess issues presented herein, are but the tip of the iceberg.

Moreover, the substantive right involved in domestic

litigation is among the most fundamental: the custody

and care of one’s own minor children. Meyer v. Nebraska

(923) 262 U.S. 390, 399 et seq; Pierce v. Society of Sisters

(1925) 268 U.S. 510, 534-535; Stanley v. Illinois (1972) 405

U.S. 645, 651; Santosky v. Kramer (1982) 455 U.S. 745, 753.

And, while this Petition does not, strictly speaking, pre-

sent a “women’s rights” case, the Petitioner mother

would still urge the Court’s reflection on what rights than

the right to her own children (and the related right to a

scrupulously fair legal procedure when that fundamental

right is attacked) could possibly be of more fundamental

importance to a divorced or separated woman?

Nor is the related procedural right urged herein some

mere technicality: the right of confrontation and cross-

examination has long been recognized as “the greatest

legal engine ever invented for the discovery of truth,”

California v. Green (1970) 399 U.S. 149, 158, quoting Wig-

more. Indeed, this Honorable Court’s decisions which

made the Sixth Amendment’s Confrontation Clause bind-

ing on the States by virtue of the Due Process Clause of

the Fourteenth Amendment, namely, Pointer v. Texas

(1965) 380 U.S. 400, and Barber v. Page (1968) 390 U.S. 719,

were later held retroactive precisely because the denial of

those rights totally vitiated the very “integrity of the fact-

finding process.” Roberts v. Russell (1968) 392 U.S. 293,

294, and Berger v. California (1969) 393 U.S. 314, 315.

Thus, the right to Due Process of Law in a child

custody dispute is, certainly for women, extremely

important, both in respect to the fundamental nature of

the substantive rights involved, to the critical importance

of the procedural rights of confrontation and of rebuttal

to the fact-finding process, and also in the sense of the

sheer number of such cases always going on Nation-wide

~ a concern compounded by the large number of States

(according to the Annotation at 99 A.L.R.2d 956, supra)

which apparently have “balanced” procedural Due Pro-

cess right out of the scales of domestic justice.

The issues presented by this Petition also enjoy a

prominent degree of timeliness as well. It was only in

1988 that the Supreme Court rendered its first decision on

the Due Process aspects of children as protectable wit-

nesses, Coy v. Iowa (1988) ___—*U.S. __, 101 L.Ed.2d 857,

108 S.Ct. 2798; and the Federal Due Process aspects of

children’s testifying is still very much in a state of uncer-

tain development and flux, as evidenced by the Supreme

Court’s recent grants of certiorari, on January 16, 1990, in

Maryland v. Craig and in Idaho v. Wright, October Term,

1989, Nos. 89-478 and 89-260, to review, respectively,

Craig v. State (1989) 316 Md. 551, 560 A.2d 1120, and State

v. Wright (1989) 116 Idaho 382, 775 P.2d 1124. As is readily

evident from these two State decisions, there continues to

be considerable difference of opinion as to what Due

Process, under Coy v. lowa, actually requires when a child

testifies; and while Coy, Craig and Wrighi are all criminal

cases, there is no lesser need for similar Supreme Court

clarification of the corresponding Due Process require-

ments in civil cases as well. Indeed, this instant Petition

presents a very logical and much needed “companion

case” to Craig and Wright.

The Petitioner mother therefore urges that the grant

of certiorari in this case would be most proper and advis-

able for reviewing the instant Federal Due Process ques-

tions, which are long overdue for a definitive resolution.

Part B: The “Best Interests of the Child” Issues

This second major issue is, simply, whether the so-

called “best interests of the child” test, at least as a test

for modification if not initial award of custody, is so

vague and overbroad as to violate substantive Due

Process.

That question may be restated as follows: What does

the “best interests of the child” test mean? The Petitioner

mother submits that the answer is: nothing, or anything,

or everything, according to the absolute and arbitrary

whims and caprices of the trial judge, such that Okla-

homa domestic practice is pretty much a “government of

men” rather than a “government of laws,” as condemned

ever since Marbury v. Madison (1803) 1 Cr. 137, 163, 2

L.Ed. 60, 69.

It is long-established Federal law that vague and

overbroad statutes offend Due Process. Connally v. Gen-

eral Construction Co. (1926) 269 U.S. 385, 391 et seq. This

constitutional “void for vagueness” doctrine is equally

applicable to the civil context as well. Baggett v. Bullitt

(1964) 377 U.S. 360. Significantly, some parental termina-

tion standards have been voided for vagueness. Alsager v.

District Court (S.D.lowa, 1975) 406 F.Supp. 10, aff’d on

other grounds 545 F.2d 1137 (8th Cir., 1976); Roe v. Conn

(M.D.Ala., 1976) 417 F.Supp. 769, Davis v. Smith (1979) 266

Ark. 112, 583 S.W.2d 37.

Turning to the “best interests of the child” test itself,

Petitioner notices that even the Honorable U.S. Supreme

Court itself has voiced considerable uneasiness over it:

We have little doubt that the Due Process Clause

would be offended “[i]f a State were to attempt

to force the breakup of a natural family, over the

objections of the parents and their children,

without some showing of unfitness and for the

sole reason that to do so was thought to be in

the children’s best interest.”

Quilloin v. Walcott (1976) 434 U.S. 246, 255, quoting from

Smith v. Organization of Foster Families (1977) 431 U.S. 816,

862-863 (concurring opinion). That misgiving has been

shared by the commentators:

“ ... [T]he best interests of the child” may be so

broad a standard as to justify virtually any dis-

cretionary decision made by a judge.

Orman Ketcham and Richard Babcock, “Statutory Stan-

dards for the Involuntary Termination of Parental

Rights,” 29 Rutgers Law Rev. 530, 549 (1976). And,

.. . [T]he courts which use the more prevalent

best interest test operate in a comparatively

free-wheeling manner. In determining best

interest courts evaluate any of a large number of

factors including moral fitness . . . comparative

physical environments . .. emotional ties. . . the

age, sex and health of the child . . . continuity of

the existing relationships . . . and the articulated

preference of the child. The multiplicity and

complexity of these factors, the tendency of the

court to emphasize different factors in each case,

and the failure to adopt procedures designed to

aid this factual inquiry and thus to fulfill the

expressed concern for the child, has led to some

feeling that the test may be unworkable or a

mere cloak for the operation of judicial

intuition.

Comment, “Alternatives to ‘Parental Right’ in Child Cus-

tody Disputes Involving Third Parties,” 73 Yale Law Jour.

151, 153-154 (1963).

These vagueness concerns were judicially reinforced

in In re J.P. (Utah, 1982) 648 P.2d 1364, 1372-1377, which

quashed Utah's “best interest” parental termination stat-

ute on other Due Process grounds, but with this caveat on

the vagueness of the statute:

Unlike the standard of “parental fitness,” which

imposes a high burden on the state in an adver-

sary proceeding, the standard of “best interest”

of the child provides an open invitation to tram-

ple on individual rights through trendy redefini-

tions and administrative or judicial abuse.

In re ].P., supra, 648 P.2d at 1376.'7 Accord:

... | think some contours should be given to the

nebulous phrase “best interests of the child.” To

deprive natural parents of their child, in my

opinion, requires more than someone else’s idea

of what is best for it, even if that someone else is

a court. The test followed here, if it is a test in

any sense of the word, does not gain meaning

by mere repetition, nor do its words express

limitations characteristic of our traditions in the

role of government . .. The terms “welfare” and

“best interests,” however pleasing may be their

sound, afford little in the way of a guide-

.. . Where the issue is nothing more specific

than welfare, the range of inquiry is virtually

unlimited, with corresponding room for arbi-

trary or personal decision.

'7 Apparently, the juvenile court in ].P. did void the “best

interests” statute squarely for vagueness. See “Recent Develop-

ments, XII, Parent and Child,” 1983 Utah L. Rev. 245, note 526,

at 246.

Giacopelli v. Florence Crittenton Home (1959) 16 Ill.2d 556,

158 N.E.2d 613, 619 (concurring opinion).

These foregoing expressions, from the-U.S. Supreme

Court on down, are, as stated, concerns, not holdings. But

concerns should not remain concerns forever. Either the

concern is valid, or, upon further review, the concern is

not valid. In either case, such a concern should be

resolved for the settlement, stability and predictability of

the Law. Since the voicers of concern over the possible

invalidity of the “best interests” test include the U.S.

Supreme Court itself, the Court should, in the interests of

the clarity and the certainty of the Law, take this oppor-

tunity to resolve - one way or the other - its own and

others’ solemn concerns about the “best interests” test.

This Petition clearly presents that opportunity for such

resolution.

CONCLUSION

One American supreme court has condemned the in

camera child interview as a throw-back to Star Chamber.

Ex Parte Berryhill (Ala., 1982) 410 So.2d 416, at 418.

Another American supreme court has denounced the

reception of other secret testimony in a custody dispute

as a reversion to the Inquisition. People ex rel. Bernat v.

Bicek (1950) 405 Ill. 510, 91 N.E.2d 588, 595, 596-597. And

in yet another case, also involving child custody although

in a somewhat different context, the American Supreme

Court has seen fit to describe with the term “kangaroo

court” that process which, inter alia, denies, as here, con-

frontation and/or cross-examination altogether. In re

Gault (1967) 387 U.S. 1, 28, 42-57.

The issues presented herein are clearly “cert-worthy”

in terms of substantiality, wide impact, conflict in the

relevant lower courts, intensity of the violation com-

plained of, and timeliness of co-pendency with similar

cases wherein review has been granted.

WHEREFORE, premises considered, the Petitioner

does move the Honorable United States Supreme Court to

grant a writ of certiorari herein.

Respectfully submitted,

Rosert S. Riziey

Brewster, SHALLCROSS & RIZLEY

20 East 5th Street, 15th Floor

Tulsa, Oklahoma 74103-4304

(918) 584-1500

Attorney for Petitioner

Member of the Bar of the

United States Supreme Court

Of Counsel:

Larry M. Spears

Bay, Spears, Lees & Verity

501 Northwest Thirteenth

P. O. Box 61190

Oklahoma City, Oklahoma 73146

(405) 235-5605

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

APPENDIX E:

APPENDIX F:

APPENDIX G:

APPENDICES

Page

District Court’s Oral Pronounce-

ment of Judgment, September 17,

District Court’s Journal Entry of

Judgment, filed April 9, 1987....App. 7

Court of Appeals’ (Division III)

Affirmance, January 24, 1989...App.

Court of Appeals’ Denial of Rehear-

ES SE App.

Oklahoma Supreme Court’s Denial

of Certiorari, November 1,

SEED SEEboccccccccccccce App.

Oklahoma Supreme Court’s Order

Unsealing Transcript of Child’s Testi-

mony, September 16, 1987...... App.

Extract of Steph v. Steph, Okla. App.,

Div. I, October 10, 1989 (No. 71,166,

I so bocce ccc cccce App.

App. 1

APPENDIX A

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

JAMES ROBERT COLVERT, JR.,)

Plaintiff,

vs.

CYNTHIA M. COLVERT,

Defendant. )

JFD-75-1675

JUDGMENT

OKLAHOMA COUNTY COURTHOUSE

September 17th, 1986

Oklahoma City, Oklahoma

APPEARANCES:

Honorable James B. Croy,

Special District Judge,

Presiding.

FOR THE PLAINTIFF: Mr. Edward Goldman

Attorney at Law

416 N.W. 23rd

Oklahoma City, Oklahoma

73103

FOR THE DEFENDANT: Mr. Larry Spears

Attorney at Law

501 N.W. 13th

Oklahoma City, Oklahoma

73103

Reeda L. Frampton

Certified Shorthand Reporter

Oklahoma County Courthouse

Room 313

Oklahoma City, Oklahoma

——eEE—————————

App. 2

(p. 2) (Thereupon, and on the 17th day of Sep-

tember, 1986, the following proceedings were

had in open court, with all parties and counsel

present:)

THE COURT: Let the record reflect, in fact the record

already reflects, but I will advise the parties that I had an

interview with the child that probably, I didn’t time it,

probably lasted 45 minutes or an hour, I’m sure you all

are more cognizant of the time than I am.

The child has expressed a desire that the transcript of

that be protected and I’m going to issue an Order that |

do not even know if I have the power to do, which is I’m

going to protect the record of that except for appeal. If

you all petition the Court, either party petitions the Court

on appeal to have the record be made available for the

briefing for the Appellate Court, then I will grant if for

those purposes. I don’t think that either party should

have the - and I - my opinion is I don’t think either party

should have the access to that for the sake of curiosity. |

don’t think that would be in the best interest of the child

and also when we went into the interview I told the child

that is what I was going to do and I wanted him to frame

his responses to my questions based on that assumption.

I went through all of the subjects that I had and all of

the subjects that both, I hope, that was my intent and |

reviewed everything, all the subjects that both attorneys

provided me. Mr. Goldman we have filed the original of

yours in the case (p. 3) and we filed the original of yours

in the case, yours | understand was not written out, but is

in the case for the record.

App. 3

The test on a motion to modify custody is that there

is a permanent, substantial, material change in the condi-

tion, that is the first part of the test. I do not agree with

the Defendant here, I think there have been so many

permanent, substantial and material changes of condition

in this case that that was almost a foregone conclusion.

Both parties have remarried, both parties have had addi-

tional children come into the family, both parties have

apparently progressed financially and socially in the

community. The other major change is the child has

reached the age of reason, I’m not saying he was not at

the age of reason before, I didn’t know him before. He

quite apparently was today.

Therefore, and | find that there have been numerous

material, substantial changes of condition. The child’s life

insofar as both families impact on it has changed substan-

tially at least since 1978 or ’76 when the divorce was

granted and I believe since 1983 when I understand from

the child there was a hearing on visitation, it 1983 or ’82,

he was not certain and that kind of came out in testimony.

If the Court finds there’s a change, substantial and mate-

rial change of condition I then go to the best interest of

the child, needless to say if there’s no change of condition

I stop there and the motion would be denied at that point.

I want to make one comment here about the (p. 4) psy-

chologist, it seems to me what I have heard in the past

couple of days from the psychologists gets down almost

to just their personal —- their personal considerations what

a home should be like. Dr. Sternlof to me seems to be

saying that — that homes should be fairly permissive,

should be kind of free-wheeling places. Dr. Heath said,

homes should be a controlled environment and I think

App. 4

that impacted heavily on the fact that Dr. Heath thought

the Defendant should maintain custody and Dr. Sternlof

thought the Plaintiff should obtain custody. Dr. Heath

expressed an opinion which he would not elevate to a

medical certainty, or a reasonable medical certainty about

the propensity of Deborah Colvert to attempt suicide. We

get down to the point where you have a non-psychologist

either agreeing or disagreeing with the professionals. In

this case, I find both households to be fit and proper to

have custody of the child.

The child is extremely fortunate to have two sets of

parents that love him and are able to afford him the — the

education, I told him, I'll tell you, he — regardless of how

this comes out, he’s going to one of the two best schools

in Oklahoma. He agrees with me on that. I will tell you I

discussed with Jay the concept of quality free time and he

certainly agrees with that concept that he’s — that his

quality free time he states generally with his father, I’m

looking at my notes here, if you’re wondering what I’m

doing. (p. 5) I want to make one other comment about Dr.

Heath stating —he didn’t — the unlimited telephone calls

to the Plaintiff, to the father, should be curtailed and he

made the statement that, you know the boy had access

here to an M.D. and R.N., at the father’s. He did not make

any statement that the boy has access to a pharmacist and

juris doctorate, at the mother’s, that kind concerned me

just because it seemed to show a bias on his part that I

was not prepared for.

The case is very difficult it is not one where there are

clear cut avenues for the Court to follow it turns rather

on penumbra and nuances. | will advise both parties, as

you already know, Jay expressed the clear, unequivocal

App. 5

desire to live with his father, he did that from the first

minute to the last minute and it was unshakeable. I went

~ I approached it every way I know to - to try to use what

expertise I had to glean whether or not it was clearly due

to the pressure, possibly due to pressure, we talked about

pressure openly at some points, he thinks he is pressured

by both sets of parents, but he - I believe is clear in his

decision and because of that I’m going to go ahead and

change custody to the father. I think this is a difficult

decision for both parties, visitation will be place at the

same rate with the Defendant and Mr. Gilbert and that

means that Jay will be spending the majority of the sum-

mer with them. I will not take up any matters of child-

support because there has been no evidence of financial

ability (p. 6) no direct evidence. Also, if either party is

entertaining costs or fees, I will not consider that except

by proper application.

I think Jay is fortunate to have all of you and if there

were a way I could have pleased everyone I would do it,

there wasn’t, so the motion will be sustained.

MR. GOLDMAN: And when does the transfer occur?

MR. SPEARS: Your Honor, we would like to be heard

on that. We would feel that a reasonable period of time

ought to take place, at least the remainder of the week

until like Sunday evening.

THE COURT: What I would like to see, is I’d like to

see him in Cassidy Monday and have the change take

place Sunday, Sunday evening. Now, you all, while you

haven't been agreeing with another, you’ve been able to

work with each other up to now and I hope that con-

tinues. Is there anything further?

App. 6

MR. GOLDMAN: The Court will leave it to Mr.

Spears and I to work out this?

THE COURT: The exact time.

MR. SPEARS: Well, I’d like to leave it to the parties to

work out that.

THE COURT: Well, if they can. I don’t want to place

the burden on them unless it’s readily evident. I would

say 6 o’clock Sunday, unless the parties can work out

some other arrangement, it will be 6 o’clock Sunday

evening. Visitation will then begin 2 weeks from this

weekend, next (p. 7) weekend will be the weekend of

whatever that is, the 26th and 27th will be spent in

Oklahoma City. The parties change positions as of, relat-

ing to visitation as of now, which means with respect,

except with respect to Christmas. Where did he spend

Christmas last year?

MR. SPEARS: We split the holiday.

THE COURT: Okay. Where did he spend Christmas

day? He spent Christmas day with the Defendant?

MR. SPEARS: With the Gilberts.

THE COURT: Okay. He’ll spend Christmas day with

the Plaintiff this year. To me that’s an important time.

We'll be in recess.

(End of Proceedings)

App. 7

APPENDIX B

IN THE DISTRICT COURT OF OKLAHOMA COUNT

STATE OF OKLAHOMA

JAMES ROBERT COLVERT, JR., )

Plaintiff,

va, ) No. JFD-75-1675

CYNTHIA M. COLVERT,

(now GILBERT), ‘

Defendant.

JOURNAL ENTRY OF JUDGMENT

(Filed April 9, 1987)

On September 17, 1986, captioned case comes on for

trial pursuant to Plaintiff's Motion to Modify Decree of

Divorce, said proceeding having commenced September

15, 1986. The Plaintiff appeared in person and with his

attorney, Edward Goldman, and the Defendant appeared

in person and with her attorneys, Larry M. Spears and

Clerk O. Brewster.

The Court, after hearing the arguments of counsel,

reviewing the Court file, listening to the testimony of the

witnesses and having over the Defendant’s objection, a

conference with the minor child outside the presence of

the parties and their counsel, finds as follows:

1. That the transcript of the proceedings between

the Court and the minor child shall be protected and not

transcribed unless there is an appeal from this action.

2. That there has be#n numerous substantial and

materiai changes of condition which have arisen since the

entry of the Decree of Divorce on February 3, 1976.

————————————————

App. 8

3. That the child has reached the age of reason.

4. That both households are fit and proper to have

custody of the child.

5. That the minor child has expressed a clear and

unequivocal desire to reside with the Plaintiff. That the

custody of the minor child should be awarded to the

Plaintiff.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED by the Court that the Plaintiff's Motion to

Modify Decree of Divorce shall be sustained and the

Plaintiff shall be awarded the care, custody and control of

the minor child, James Robert Colvert, III, age thirteen

with a date of birth of December 28, 1972.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED by the Court that the Defendant shall have the

following visitation privileges with the minor child:

(A) Weekends - Defendant to have every other

weekend from Friday evening until Sunday evening.

Plaintiff is to place Jay on the 7:00 o’clock bus to Tulsa on

Friday evening and the Defendant is to place Jay on the

4:30 o’clock bus to Oklahoma City on Sunday evening.

(B) Major Holidays - In odd numbered years (i.e.

1987, etc.) the Defendant shall have visitation on the

following holidays: EASTER: 6:00 P.M. Friday preceding

Easter until 10:00 P.M. Sunday. JULY 4TH: 6:00 P.M. eve-

ning preceding July 4th until 10:00 P.M. on July 4th.

In even numbered years (i.e. 1988, etc.) the Defen-

dant shall have visitation on the following holidays:

MEMORIAL DAY: 6:00 P.M. Friday preceding Memorial

App. 9

Day until 10:00 P.M. Monday. LABOR DAY: 6:00 P.M.

Friday preceding Labor Day until 10:00 P.M. Monday.

The holiday visitation schedule set out above is to be

observed whether or not it coincides with the regular

every other week visitation schedule and is in addition

thereto. However, it is intended that the holidays alter-

nate between custodial and non-custodial parents. There-

fore, on those occasions when non-custodial visitation is

ordinarily scheduled on a holiday set aside to the custo-

dial parent, the non-custodial visitation shall not take

place.

where the Defendant has two days' of the four day

Thanksgiving holiday and Plaintiff has two days of the

holiday. Commencing with 1987, the Plaintiff shall have

Jay for the first two days of the Thanksgiving holiday

with the Defendant having the remaining two days. In

1988 the Defendant shall have the first two days with the

Plaintiff having the remaining two days and alternate ina

like fashion thereafter.

(D) Christmas - School/Christmas holiday is to be

divided equally and commencing in 1987 the first half of

the holiday shall be with the Defendant with the last half

of the holiday with the Plaintiff. In 1988 the Plaintiff will

have the first half of the holiday with the Defendant

having the remaining half and alternate in a like fashion

thereafter.

(E) Spring Break - Spring Break is to be divided

evenly with the Plaintiff having the first half of the holi-

day in 1987 and the last half to the Defendant. In 1988 the

App. 10

Defendant shall have the first half and the Plaintiff the

last half, alternating in a like fashion thereafter.

(F) Summer - Defendant shall have visitation with

Jay during the summer months commencing with June

15th and ending on August 15th. During Defendant's

period of visitation the Plaintiff shall be entitled to every

fathers day week end and one other week end. Plaintiff to

notify defendant of the date of this week end by June Ist

of each year. This week end not to conflict with defen-

dant’s vacation plans. Defendant to notify Plaintiff of

such plans by May 15th.

(G) Special Visitation - With respect to Father’s Day

and Mother’s Day, if Mcther’s Day falls on a weekend

not regularly scheduled for Defendant’s visitation, Defen-

dant shall have visitation on Mother’s Day from 12:00

noon until 10:00 P.M.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED by the Court that the Plaintiff is hereby

ordered to refrain from recording any conversations

between the Defendant and the parties’ minor child.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED by the Court that the Defendant is to be

allowed liberal telephone access with the parties’ minor

child and vice versa.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED by the Court that the Court makes no order

regarding child support as there was no direct evidence

regarding said issue.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED by the Court that the transfer of the child

App. 11

from Defendant to Plaintiff shall occur by agreement of

the parties, but in any event, not later than Sunday,

September 21, 1986 at 6:00 P.M. The child shall be regu-

larly attending Casady School by Monday, September 22,

1986.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED by the Court that the Defendant’s alternating

weekend visitation shall commence October 3, 1986.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED by the Court that the question of costs and

attorney’s fees shall be considered by the Court upon

proper application.

/s/ James B. Croy

JUDGE OF THE DISTRICT

COURT

App. 12

APPENDIX C

NOT FOR PUBLICATION

IN THE COURT OF APPEALS FOR THE

STATE OF OKLAHOMA

DIVISION NO. III

JAMES ROBERT COLVERT, JR.,)

APPELLEE,

VS.

CYNTHIA M. COLVERT, now

Cynthia M. Gilbert,

APPELLANT.

No. 67,525

APPEAL FROM THE DISTRICT COURT OF OKLA-

HOMA COUNTY, OKLAHOMA

HONORABLE JAMES B. CROY, JUDGE

AFFIRMED

Clark O. Brewster,

BREWSTER, SHALLCROSS,

RIZLEY & MULLON,

Tulsa, Oklahoma For Appellant,

Edward Goldman &

Robert M. Goldman,

Oklahoma City, Oklahoma For Appellee.

MEMORANDUM OPINION

(Filed Jan 24, 1989)

Opinion by Robert L. Bailey, Judge:

Upon consideration of the briefs, exhibits and record

in the above styled matter, the Court FINDS that:

App. 13

1. Appellant seeks review of the Trial Court’s order

modifying custody of the parties’ minor son from custody

with Appellant to custody with Appellee. The parties

were divorced in 1976 when son, Jay, was three (3) years

old, and custody awarded to Appellant subject to support

and visitation by Appellee. The parties each remarried

and started new families. Appellee moved to modify the

decree in 1986, seeking custody of Jay, then thirteen (13)

years of age.

2. The Trial Court accepted testimony of the parties, as

well as testimony of the parties’ respective psychologists.

Appellant’s counseling psychologist, Dr. H., testified that

it would be in the best interests of Jay if custody

remained with Appellant. Appellee’s clinical psycholo-

gist, Dr. S., testified that it would be in Jay’s best interest

if custody was awarded to Appellee. The Court then

conducted an in camera examination of Jay, outsice the

presence of the parties and counsel. The examination was

transcribed and sealed.

3. The Trial Court found the homes of both Appellant

and Appellee to be suitable. However, the Court also

found that there had been “many permanent, substantia]

and material changes of condition,” particularly that “the

child has reached the age of reason.” The Court thus

granted custody to Appellee. This appeal ensued.

4. In her first proposition of error, Appellant asserts the

insufficiency of Appellee’s proof of the requisite elements

for a change of custody. See, Gibbons v. Gibbons, 442 P.2d

482, 485 (Okl. 1968). However, one who challenges the

Trial Court’s determination of custody must put forth

App. 14

evidence presented below upon which he relies to estab-

lish the Trial Court’s error, and must affirmatively dem-

onstrate how such evidence shows the Trial Court's

decision to have been contrary to the children’s best

interests. Gorham v. Gorham, 692 P. 2d 1375, 1378 (OkI.

1984). Ultimately, the Trial Court’s determination of best

interests of children will not be disturbed absent a show-

ing of abuse of discretion. Gorham v. Gorham, 692 P.2d

1375, 1378. We have reviewed the record and briefs, and

find that Appellant has failed to demonstrate how the

Trial Court’s adjudication of custody is contrary to the

child’s best interests. We cannot say the Trial Court

abused its discretion in its finding of substantial change

of condition, or in its determination that Jay’s best inter-

ests would be better served in the custody of Appellee.

5. Appellant’s second and third propositions of error

assail the conduct of the ex parte examination of Jay, and

the evidence therein adduced. During the ex parte ques-

tioning, Jay expressed a preference for custody by his

father, Appellee, and his ability to better communicate

and be understood by his step-mother, Appellee’s new

wife. Appellant hereunder prays that this “secret” testi-

mony be stricken for failure to allow the parties to cross-

examine, or at least to explain and/or rebut the state-

ments. While we have found no cases in Oklahoma specif-

ically approving an ex parte examination of children in

custody matters such as this, we find at least three Okla-

homa cases where a private examination of the child has

been conducted by the trial court and has received at

least tacit approval of our Supreme Court. Ex parte

Hudspeth, 271 P.2d 371, 372 (Okl. 1954) (child examined

“privately” by judge without objection on appeal);

App. 15

Strachan v. Strachan, 331 P.2d 372, 374 (Okl. 1958)

(remanded for required record of children’s preference

not recorded during in camera ex parte examination of

children); Stover v. Stover, 689 P.2d 952, 953 (Okl. App.

1984) (children interviewed “by judge alone” without

objection on appeal). Legislation effective immediately

subsequent to the instant hearing specifically permits

such ex parte questioning of children regarding preference

for custody. See, 12 O.S. 1986 Supp. §1277.1.

6. The instant case required the Trial Court to balance

the rights of the parties to protect their custodial status,

while at the same time, protecting the rights of Jay and

mitigating the adverse impact of the parent’s custody

dispute on the child. The Trial Court reasoned that it

would not be in the child’s best interests, nor in the

interest of justice, to have several people questioning

him, and that such a situation would put the child “ill at

ease.” By the ex parte examination, the Trial Court thus

appropriately placed the best interests of the child para-

mount to the interests of the competing parties, the

Court’s ultimate responsibility. This rationale is obviously

at the heart of the 1986 amendment to 12 O.S. 1277.1,

supra. We therefore find no reversib’e error by the Trial

Court in the conduct of an in camera and ex parte examina-

tion of the parties’ son.

7. Oklahoma statues in effect at the time of hearing

clearly allow the consideration by the Trial Court of a

child’s preference as a factor in determining proper cus-

tody of the child:

“In any divorce action in which the court must

determine custody, the child may express a pref-

erence as to which of its parents the child

—————

App. 16

wishes to have custody. The court may deter-

mine whether the best interests of the child will

be served by the expression of preference and if

the court so finds when the court may consider

the expression of preference in determining cus-

tody. Provided, however the court shall not be

bound by that choice and may take other facts

into consideration in awarding custody.” 12 O.S.

1981 §1277.1.

And elsewhere:

“The court may consider the preference of the

child in awarding custody of said child if the

child is of sufficient age to form an intelligent

preference.” 10 O.S. 1983 Supp. §21.1(B).

See also, Ex parte Hudspeth, 271 P.2d 371, 373; Gowin v.

Julius, 279 P.2d 954, 955-956 (Okl. 1955). The child’s desire

is therefore admissible as a fact to be considered with

other facts by the court in exercising its discretion and

determining the best interests of the child. Bishop v.

Benear, 132 Okl. 116, 270 P. 569, 571 (1928). Under these

authorities, and from our reading of the Trial Court’s

pronouncements, we cannot say that the Trial Court’s

ruling was based solely on the expression of preference by

the child as argued by Appellant, or that the Trial Court

properly determined, taking all the evidence in toto, and

commensurate with the above statutes, that the child’s

best interests would be served by the preference. 12 OS.

1981 §1277.1, supra.

7. We therefore hold that the evidence of the child’s

preference for custodial parent was properly admitted in

the present custody modification proceedings to deter-

mine what action was truly in the best interests of the

child. We subsequently find no error of law or abuse of

App. 17

discretion by the Trial Court in conducting an ex parte

examination, in its consideration of the expressed prefer-

ence for custody, or by according that desire weight in

making the custody determination. Even admitting

arguendo the error of the Trial Court in this respect, we

find ample ample [sic] evidence in record apart from the

in camera testimony supporting findings of substantial

change of condition, and that the child’s best interests

would be better served by awarding custody to Appellee.

The order of the Trial Court granting Appellee’s

motion to modify custody is therefore AFFIRMED.

GARRETT, P.J. and REYNOLDS, J. concur.

App. 18

APPENDIX D

RELEASE FOR PUBLICATION IN THE OKLAHOMA BAR

JOURNAL BY ORDER OF COURT OF APPEALS

(Filed Mar 10, 1989)

DIVISION 3

March 9, 1989

THE CLERK IS DIRECTED TO ISSUE THE FOLLOWING

ORDERS:

67,525 - James Robert Colvert, Jr., Appellee v. Cynthia M.

Colvert, now Cynthia M. Gilbert, Appellant.

Appellant’s Petition for Rehearing is DENIED.

” * *

DONE BY ORDER OF THE COURT OF APPEALS IN

CONFERENCE this 9th day of March, 1989.

/s/ James P. Garrett

JAMES P. GARRETT, Presiding Judge

App. 19

APPENDIX E

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

Wednesday, November 1, 1989

(Filed Nov 1, 1989)

THE CLERK IS DIRECTED TO ISSUE THE FOLLOWING

ORDERS:

67,525 James Robert Colvert, Jr. v. Cynthia M. Colvert,

now Gilbert. Certiorari denied.

All justices concur.

+ * *

/s/ Rudolph Hargrave

CHIEF JUSTICE

App. 20

APPENDIX F

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

Wednesday, September 16, 1987

(Filed Sep 16, 1987)

THE CLERK IS DIRECTED TO ISSUE THE FOLLOWING

ORDERS:

* * *

67,525 James Robert Colvert, Jr. v. Cynthia M. Colvert,

now Gilbert.

Motion to unseal transcript granted.

* * *

/s/ John B. Doolin

Chief Justice

App. 21

APPENDIX G

NOT FOR PUBLICATION

THE COURT OF APPEALS OF THE

STATE OF OKLAHOMA

DIVISION I

WESLEY SADLER )

STEPH, )

A ) Case Number 71,166

ppellee, )

versus )

REBECCA JANE

STEPH, )

Appellant. )

APPEAL FROM THE DISTRICT COURT OF

OKMULGEE COUNTY, OKLAHOMA

HONORABLE ANNE MORONEY, JUDGE

AFFIRMED IN PART, REVERSED IN PART

AND REMANDED

Conner L. Helms,

LINN & HELMS

Oklahoma City, Oklahoma, For Appellant,

Tom J. Laub,

Okmulgee, Oklahoma, For Appellee.

MEMORANDUM OPINION

(Filed Oct 10, 1989)

Opinion by STEWARD M. HUNTER, Judge:

Appellee Wesley Sadler Steph filed suit in district

court alleging that he and Appellant Rebecca Jane Steph

were common-law husband and wife and prayed that he

be granted a decree of divorce and custody of the parties’

minor son, then two years old. In response, Appellant

App. 22

filed an answer denying the allegations and cross-peti-

tioned for a decree of divorce and custody of the child.

* * *

Appellant also contends that the trial court erred in

consulting privately with Appellee’s expert witness on

the issue of custody of the child without affording Appel-

lant an opportunity to cross-examine the witness.

At the show cause hearing, Appellant’s former coun-

sel requested that the parties and child see a child psy-

chologist to determine the best interests of the child.

Appellant’s former counsel had no objections to the

appointment of Dr. Bill Bryant as the child psychologist

to meet with the parties.

At trial, Appellee moved to reopen his case in order

to call Dr. Bryant as a witness. Upon Appellant’s objec-

tion, the trial court stated that if it felt the expert's

testimony was necessary for a proper custody determina-

tion, the court would allow the witness to testify.

After Appellant presented her case, Appellee again

offered Dr. Bryant as a witness, and the trial court stated

that since Appellant had strongly objected to his testi-

mony, the trial court would consult privately with the

witness in chambers. Appellant was instructed that there

would be no examination of the witness in open court.

Appellant then requested that another expert determine

whether Dr. Bryant was properly qualified as an expert

witness. This request was denied.

Title 12 O.S. 1981, §2614(A) provides “the court may,

on its Own motion or at the suggestion of a party, call

witnesses, provided that all parties shall have the right of

App. 23

cross-examination of those witnesses.” (Emphasis added.)

We agree that this statute establishes a mandatory right to

cross-examine all witnesses.

The right to cross-examine witnesses is the most

valuable right given by law in assisting the trier of facts

in determining the truth of direct testimony. Lee Wayne

Co., Inc. v. Pruitt, 550 P.2d 1374 (Ok. 1976). Cross exam-

ination is a safeguard to truthfulness and accuracy and

may be used to discredit a witness or develop facts favor-

able to the cross examining party. Flo-Bend, Inc. v. Pullam,

570 P.2d 1165 (Okl. 1977). The trial court’s discretion to

control the extent of cross examination does not extend to

complete exclusion of such testimony. Frierson v. Hines,

426 P.2d 362 (Okl. 1967). The refusal to allow cross exam-

ination upon matters tending to affect credibility is error.

Frierson v. Hines, supra.

We find the trial court committed fundamental error

in refusing Appellant the right to be present during the

court’s examination of the expert witness and to cross

examine the witness. Flo-Bend, Inc. v. Pullam, supra; Frier-

son v. Hines, supra. It is clear that Appellant was preju-

diced by the court’s action and this case must be reversed

and remanded for further hearing to allow Appellant an

opportunity to hear this witness’ testimony and to con-

duct cross examination of the witness if she so desires.

The trial court’s judgment is affirmed as to the

divorce granted to the parties. The case is hereby

reversed and remanded to the district court for a child

custody hearing consistent with the views expressed

herein.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.