The court papers state that Winkler's continued separation from her kids is "unconscionable and detrimental" to the girls. Winkler "would show that she does not represent a threat of substantial harm to the children and therefore they should be returned to her immediately in order to serve their best interest," the filing said.
Asked on "Oprah" why she should have her kids back, Winkler said, "I'm their mother."
"I did not want any of this to happen," she said.
Tennessee's preference for rights of biological parents weighs in Winkler's favor, lawyers said. In a case earlier this year, the state Supreme Court ordered an 8-year-old Chinese girl returned to her biological parents, though she had been raised by her foster parents since before her first birthday.
"Natural parents have a fundamental right to have care and custody of their children," said Jackie Dixon, a local child custody attorney.
Parental rights are most commonly terminated in cases in which a parent has a serious drug habit or a history of child abuse, said Mason. In Winkler's case, there is no evidence that she ever directly harmed her children, though the Winklers are expected to argue that killing her husband caused emotional harm to her children.
"The personal values of the judge are going to play into this," Mason said. "If you're a judge, do you really want to take that risk that she's going to harm her children or harm herself?"
A judge Tuesday refused Dan and Diane Winkler's request to stop Winkler from appearing on "The Oprah Winfrey Show." But hours later, a different Tennessee judge said Winkler, who is under court order to stay in Tennessee except for visits to her attorney, could not leave the state to tape the show. Winkler's "Oprah" interview was already taped and aired today.