Sept. 12, 2007 — -- Mary Winkler may be able to regain custody of her three daughters even though she shot and killed the girls' father last year, Tennessee family law attorneys told ABC News.
Winkler, who was convicted in April of killing her husband, is locked in a bitter, public custody battle with her former in-laws, who have had temporary custody of Winkler's three children since her arrest. They want to end Winkler's parental rights and adopt the girls.
Tennessee state law allows judges to end the parental rights of a parent who is convicted of killing the other parent. But, lawyers said, it's still not clear that the girls' grandparents, Dan and Diane Winkler, will succeed. Tennessee law favors the rights of biological parents, and Mary Winkler may be able to convince a judge that she's still fit to be a mother.
"It looks like she has the deck stacked against her, but I wouldn't count her out," said Rose Palermo, a Memphis family law attorney. "She's such a sympathetic character. She's the mother of these three children, and there's no evidence she's ever physically abused them."
To gain permanent custody of the girls, Dan and Diane Winkler need to show that Mary Winkler poses a substantial threat of harm to her children and that ending her parental rights is in the best interests of her children, lawyers said. That relatively loose legal standard will leave much to the discretion of the judge hearing the case, and experts expect psychologists to testify on behalf of both Winkler and her former in-laws.
"It's going to be a real close call," said Miles Mason, a family law attorney in Memphis. "I think it will go to the Tennessee Supreme Court. I think this is round one of a very long and painful process for these children."
In an interview that aired Wednesday on "The Oprah Winfrey Show," Winkler said she is a different person today than she was in March 2006, when she shot and killed her husband, the Rev. Michael Winkler.
"I communicate better," she said. "I speak up when there's something I don't like."
Winkler, 33, has said she endured years of what she described as psychological and sexual abuse by her husband. A psychological expert for the defense testified at Winkler's trial that she suffered from post-traumatic stress disorder as a result of the abuse.
She was charged with first-degree murder, but a jury convicted her of manslaughter in April. Winkler was sentenced June 8 to three years in prison but served only 67 days — 12 in jail and the rest in a mental health facility because of credit for time in jail before her trial, the nature of the offense and the lack of a criminal record. The remainder of her term will be spent on probation.
Earlier this week, Winkler filed a petition with a Tennessee chancery court asking for immediate custody of her three children, ages 2, 8 and 10, or frequent visitation rights. A judge set a hearing for next week. Winkler's lawyer didn't immediately return a message seeking comment. Dan and Diane Winkler's attorney couldn't be reached immediately; he declined to comment to The Associated Press.
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.