Who Will take Care of Your Children if You Can Not? The Michael Jackson Case

Choosing A Guardian. The hardest part of estate planning for parents with minor children is choosing who will take care of their children if both parents die before the children are adults. Because this is such a difficult decision, it often is never made, with tragic consequences. But, even where a parent has made a choice, the courts are not bound by the parent’s will, and may appoint an ill suited ex spouse, the worst nightmare of a caring parent. This is front page news in the Michael Jackson case.

Jackson’s Will. Michael Jackson’s will designates his mother, Katherine Jackson, as the person to receive custody and to be the guardian of his three children, 12-year old Prince Michael, 11-year old Paris Michael and 7-year old Prince “Blanket” Michael II. But, Jackson’s ex-wife, Debbie Rowe is negotiating over custody with Katherine Jackson. The Los Angeles Court had delayed until July 20 a ruling on who will receive permanent custody of the children by a joint request of Katherine Jackson and Debbie Rowe. See Michael Jackson's Will Here.

Is Debbie the Mother? Debbie Rowe claims to be the mother of Prince Michael and Paris Michael. The mother of Blanket was an unknown surrogate. Michael Jackson and Debbie Rowe were married in 1996 and divorced in 1999, with Rowe giving full custody rights to Jackson in the divorce. Reports are that Michael Jackson paid Rowe $8 million and gave her a house in Beverly Hills to get her out of

the life of his children. An agreement giving up her parental rights was later set aside by a court in 2004, but Rowe and Jackson entered into another agreement in 2006 for allegedly an additional large payment. TMZ reports that Rowe was not the biological mother, but actually a surrogate mother. This is denied by Rowe and is probably irrelevant because previous court decisions have treated her as their mother. Reports are that Jackson and Rowe reportedly had little of a real marriage, no contact since the divorce and that there is no relationship between Rowe and the children, Prince and Paris.

Primacy of a Parent. If there is a big court battle between Katherine Jackson and Rowe, many legal experts think Rowe would likely be given custody of the children even though Jackson’s will chooses Katherine, someone who has a strong relationship with the children. First and foremost, a sole surviving parent has often a decisive legal right to the custody of their children. Rowe’s attorney might make a case that Katherine, nearing 80, is too old, and that her husband, Joseph Jackson, was abusive to his children, making their home not a healthy and safe place for Michael’s children. Katherine’s advocates would fire back that Debbie has no regular contact with the children and gave up her custody rights for money.

What to Do. What does all of this tragic soap opera mean for us? In estate planning, one of the most wrenching problems is making sure that the children of a responsible parent do not end up with an ex spouse who is irresponsible. The basics are that your designation of a friend, new spouse, or your parent as the guardian for your children in your will is not legally binding on the court. What can you do?

1. Name the Guardian and Alternatives in your will. If you do not have a will, the court will appoint a guardian for you. Name a primary and at least one back up guardian.

2. Give the reasons for your choice. Put in your will, your cogent and persuasive reasons for your choice of guardians. I am not talking about: “my ex husband is a bum and a drunk”. But if the ex husband beat the children, is an alcoholic and you have proof, then include that.

3. Fund the Fight. In your living trust, emphasize the importance of your choice of guardians and require the trustee to spend funds from the trust assets to buy the best legal talent to fight for custody.

4. Reference any court orders, doctor’s findings or other evidence that shows the ex spouse would be a bad choice for guardianship. Even siblings and close friends will not be able to find old court cases or testimony determining custody in a divorce or even know that they exist. In one case, we put in the will the report of the examining psychologist that the mother was an alcoholic and suffered from acute mental disorders and was an unfit mother and should receive no custody of the children in the divorce proceeding. But, with this likely testimony, the ex wife gave up custody before the hearing so there were no formal court findings in the record. If we did not have the information in the will, no one may know about it. You might be concerned that the will is a public document and you might prefer a private statement. However, the will is likely to be admitted as evidence before a court and a separate statement may be excluded from consideration by the rules of evidence.

5. Have the Guardians involved with your children. When possible, have the prospective guardians be a part of family gatherings and even do some babysitting. An important factor is the relationship between the guardians and the children.

6. Choose Your Guardians Well. Choose responsible people who do not have a criminal record or a history of child abuse and who have experience as good parents.

You might say, well, I will just buy off the ex spouse in exchange for their parental rights. Michael Jackson appears to have tried that, but the Court set it aside. A contract to sell your children is probably not enforceable and in many cases is a crime in California and other states.