specially concurring.
This appeal results from a proceeding in which the natural father of two minor children challenged the right of appellants Atha to have custody and control of his two sons by filing a petition for writ of habeas corpus. The trial court granted the writ and after a hearing ordered custody and control of the children be vested with Father. Upon review of the record and applicable law, I would reverse this order.
The appellate court’s jurisdiction to review child custody in habeas corpus proceedings was recognized in Hedtke v. Kukuk, 93 Okla. 264, 220 P. 615 (1923). In that case, the supreme court established that the purpose of such proceedings is to determine who has the present right to custody and control of minor children.
Father filed his petition on September 27, 1988. That same day, the district judge issued the writ of habeas corpus and set a hearing for 1:00 p.m. the following day, September 28, 1988. Father asserts that, because the natural mother is incapacitated in Oregon, he is entitled to the exclusive custody of his children. Appellant Joyce Atha contends that she has legal custody and that sole jurisdiction to modify custody is with the courts in Oregon.
The facts are not in dispute. Father was granted an uncontested divorce from Mother on June 18, 1980. Mother was granted custody of the boys and awarded her personal possessions. Father was awarded the home, automobile, his personal possessions and the debts of the marriage. He was also ordered to pay child support in the amount of $100 per month.
Three months after divorce, Mother and her two sons moved to Oregon to live with her mother, Nona Loop. Six years later, on August 3, 1986, Mother was injured in an accident. The maternal grandmother, Nona Loop, was duly appointed under Oregon law, O.R.S. 126.030, as the children’s guardian. Father was served notice of the guardianship proceeding by registered mail. He neither appeared nor filed a response in that proceeding.
Nona Loop was diagnosed with cancer in 1988. Pursuant to O.R.S. 126.030, she properly gave appellant Joyce Atha a temporary power of attorney regarding custodial authority of the children.
It is clear that the purpose of the writ of habeas corpus was satisfied when appellant Atha demonstrated that she was legally entitled to the custody of the two children. This authority was derived from the Oklahoma court order awarding custody to the mother together with the derivative guardianship and power of attorney actions in Oregon. Hearings on extraordinary writs are not the proper vehicle to try motions to modify child custody. There is a legal remedy which provides a method to present child custody problems in a timely fashion and allows sufficient time for adequate preparation and investigation. It should also be noted that neither Mother nor grandmother Loop were parties to this action. The district judge erred in stretching the writ hearing to include issues of child custody modification.
I fully concur that under this record Oklahoma no longer fulfills the prerequisite for jurisdiction to determine custody as required by 10 O.S.1981 § 1605, and that Oregon is the proper forum.