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Who will get custody of Michael Jackson's children?

The custody issues surrounding the children of deceased pop star Michael Jackson were the prominent topics today in Los Angeles as national and international news media sought family law analysis and commentary on the complex Jackson custody situation. The family law offices of Feinberg & Waller, a professional corporation, fielded numerous queries from the media with regard to the custody issues that could potentially arise for Jackson's three children, Prince Michael, age 12, Paris-Michael Katherine, age 11 and Prince Michael II, age 7.

A Los Angeles judge placed the children under the temporary guardianship of Katherine Jackson, their paternal grandmother. Among the potential custody issues looms one of primary significance: with whom should these children be placed? Complicating this analysis is the fact that while we know who the mother of the two older children is, that matter is unclear regarding the youngest child. As we know, while the mother of the two older children has been identified (Deborah Rowe), this information is lacking regarding the youngest child; in other words, we don't know who the other biological parent of the youngest Jackson child is, and this of course reduces the universe of possible custodial guardians.

As a practical matter, the courts are going to look to the best interests of the children when making this very important decision. As of now, the only person who has stepped forward seeking custody is Katherine Jackson. This could change, of course, if Ms. Rowe steps up and asserts her parental rights as the mother of the two older children. The reader may recall that Ms. Rowe and Mr. Jackson entered into a contract at the time of their divorce that terminated Ms. Rowe's parental rights. After Michael's legal troubles surfaced, however, Ms. Rowe asked the court to set that agreement aside, claiming that it was a violation of public policy for two parents to simply stipulate, without government involvement, to terminate parental rights. The Court of Appeal agreed with Ms. Rowe and set that agreement aside, thus restoring her rights as the biological parent of Prince Michael and Paris Michael. Thereafter, Ms. Rowe and Michael Jackson settled the custody situation between them, leaving the children in Michael Jackson's full care and custody. Of course, now that Michael has died, things are indeed different.

As stated above, Michael's mother, Katherine Jackson successfully petitioned the Court for temporary guardianship of all three children, an altogether predictable event. She was also given partial control over the children's estate (they are the presently presumed heirs to the Michael Jackson estate). A follow up hearing has been scheduled for August 3, 2009, at which point the Court will consider any objections to Katherine Jackson's request as well as any other Petitions for custody (for example, if Ms. Rowe chooses to request custody). Should Ms. Rowe request custody, she will most likely turn to California Family Code section 3041, which essentially provides a standard of review that states that before custody of a child can be given to a non-parent over the objection of a parent the Court must find that placement with the parent would be "detrimental to the child" and that granting custody to the non-parent is "required to serve the best interests of the child." Family Code section 3041(b) instructs that these findings must be made pursuant to "clear and convincing evidence," which is by no means a "slam dunk." If Ms. Rowe asserts this section there will indeed be quite the trial on these issues and it will be up to the Jacksons to meet this test regarding their objection to Deborah Rowe as the custodian of the children. Interestingly in the context of this particular case, the Court has the discretion to hold these hearings in private.

The Jackson's will no doubt look to Family Code section 3040, which sets out the statutory preference in awarding custody: both parents jointly, either parent, a non-parent "in whose home the child has been living in a wholesome and stable environment" or finally to any other person deemed by the court to be "suitable and able to provide adequate and proper care and guidance for the child." As has been asserted by the Jackson family, there is a long history and a strong relationship between the Jackson grandparents and Michael's children, and placement with the paternal grandmother also eases a conundrum that presents itself in the form of the youngest Jackson child, Prince Michael II, sometimes referred to as "Blanket." In his case, no biological parent seems to be known who can come forward to claim custody as Ms. Rowe can do with her children. As such, there seems to be no other alternative than Katherine Jackson, which gives rise to a prediction that Ms. Jackson will indeed end up as the custodial parent of young Prince Michael II. Were this to happen, and should Ms. Rowe raise a request for custody of the other two children, the Court will grapple with the prospect of separating these children from each other.

In our opinion this is extremely unlikely. There is a strong precedent and policy for keeping siblings together in circumstances such as this, and under the circumstance that Ms. Rowe is believed to have no relationship whatsoever with the children, it is highly unlikely that she will end up winning custody of the two older Jackson children, especially were that to mean that they would be separated from their younger brother.

Finally, of course, is the question of the finances: someone needs to manage Michael Jackson's estate. Michael's mother Katherine has requested to be so named, and for now at least appears to be unopposed in this request. She has alleged that her son died without a Last Will and Testament, which opens the door for her to make this request. There is speculation in the news, however, that a Will does indeed exist. If so, then there may be a nomination of Guardian as well as a scheme for managing and distributing the Michael Jackson fortune.

At this point it appears that there is much to transpire in this complicated and tragic situation. The upcoming days and weeks will no doubt prove to be very interesting. It seems that even in death, Michael Jackson, the King of Pop, continues to provide much to talk about.

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