The King of Pop Needs a King Solomon

UPDATE: Katherine Jackson was granted temporary guardianship over her three grandchildren Monday. Thursday, Jackson’s ex-wife Debbie Rowe said she would file for custody of Jackson's two oldest children. Legal expert Wendy Murphy parses parental claims from Jackson’s inner circle.

The custody battle is real now: Michael Jackson's mother, Katherine, was granted a temporary guaradianship petition for her son's three children last Monday. Michael Joseph, 12, Paris Michael, 11, and Prince Michael, 7 (“Blanket”) landed in limbo when their dad died because they have no real “mother." And now on Thursday, Debbie Rowe said she would challenge Katherine's guardianship and seek custody of the two oldest children that she birthed—as well as a restraining order against Joe Jackson. Later that same day, her attorney said Rowe has not yet made up her mind whether to file for custody. Either way, reasonable people are suspicious of Rowe’s motives. If she was so worried about Joe Jackson, why didn’t she ask for a restraining order a month ago—or ten years ago for that matter. And how come she keeps demanding custody claiming she's worried about the kids—only to give up her claim when someone writes her a big check? After Michael’s death, Rowe’s attorney said they were trying to get in touch with the Jacksons. Their efforts may well have been ignored, prompting Rowe to use the press to announce her plan to seek custody as a tactic to force a return phone call—and the restraining order bit may have been a veiled threat to reveal ugly information about Joe if the family didn’t start dealing with Rowe. Hours after saying she would seek custody, Rowe’s attorney backed down a bit—claiming she might not file papers after all. I’m thinking her threat worked, the Jacksons returned her call, and the conversation included a promise that a hefty check would soon be in the mail.

Whoever wins custody of the kids knows they will be raking in a big pile of dough.

Debbie Rowe became pregnant through IVF and denies claims she used an egg donor, but has said the sperm was not Jackson's. After her second child was born, she was divorced from Jackson and she agreed to give up all parental rights—for a substantial payout, of course.

A few years later, Jackson wanted another child—but apparently not another wife. So he found a surrogate who birthed him a “baby Blanket.”

All three kids were then raised by a different woman, Jackson’s nanny Grace Rwaramba, who has been their primary caregiver for over a decade. More of a consistent parent in the children’s lives than even Jackson himself, Jackson reportedly told people he wanted his children to be raised by Rwaramba if anything happened to him.

But Jackson has also said he wanted his kids to be raised by his closest relative, his mother, Katherine. The kids adored their grandmother, and she spent a lot of time with them. But Katherine is said to be ill—and she’s not a young woman. Still, she could hire younger help and provide a stable loving home.

None of these women will win hands down. A judge will need to hear from all interested parties before deciding where the kids will live now that their only legal “parent” is gone.

It used to be easy to figure out who should have custody of kids when one parent died—because it was pretty clear who the “real” parents were. The mother was the one who birthed the child—and if she was married, you could usually assume her husband was the father. If one of them died, the other one automatically took sole custody. It didn’t even require judicial involvement or lawyers. Kids “defaulted” to the surviving parent.

But then came Louise Brown—the world’s first “test tube” baby—and before you knew it, people were giving eggs and sperm to complete strangers such that the woman and man (or woman and woman, etc.) in the delivery room could have zero biological connection to their little bundle of joy.

The law has struggled to keep up with technology—and over the past 20 years, what was once a simple rule that determined custody based on who had sex with whom has become a more murky doctrine; one that bestows the privilege of parenthood not on the people whose DNA matches up, but more typically on those who will protect the “best interests of the child.”

Simple enough, but the “best interests” standard still gives way to the Constitutional rights of the “legal parent”—which is why Debbie Rowe could have a paramount claim. But here’s where the law starts to look like an ass. Rowe should have no claim whatsoever because compared to everyone else—she’s been the most selfish and least “motherly,” treating her children like a bank account rather than human beings. Rowe literally sold her children to Jackson, agreeing to give up her rights in exchange for a large sum of money when she was divorced. But it turns out the law in California doesn't allow children to be sold, so that deal was nixed when Rowe went back to court for more money after Jackson's molestation trial. A parent cannot give up her rights without a judicial determination of parental "unfitness" and because there was no investigation when she first tried to give up her children for money, there has been no finding of unfitness--at least, not yet. That the law allows Rowe even to ask for custody is bad enough. That she would dare to seek custody after trying to sell them is shameful. And that she would suggest that Michael is anything less than the legal and only father of his children at a time when they are still grieving the loss of their beloved daddy is ample evidence she is unfit to raise anyone's children..

Unlike Rowe, the surrogate mother who birthed “Blanket” has not exploited her position as the child’s biological mother, but then she was never married to Jackson, which means she doesn’t enjoy the legal presumption of parenthood. To the contrary, the law would enforce her rights only to the extent they were created by contract in the document she signed agreeing to be a surrogate for Jackson. No doubt she received a substantial sum of money to bear him a child, and the court would see that payment as all she was entitled to.

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The nanny has no formal parental rights, but she could argue that she enjoys a kind of de facto mother status, which is a doctrine of law that recognizes people who may have no legal status, but nonetheless have cared for a child and served in a parental capacity for long enough that the law will honor the relationship and create legal “parenthood” in certain circumstances.

Now that Jackson's will has been revealed and we know that Michael appointed his mother as guardian of his children in the event of his premature death, Katherine will likely win permanent custody because a deceased parent's wishes are entitled to great weight when no formal legal parent survives. And if Katherine really cares about the kids, she will invite Nanny Grace to live with her and the children. Grace is the only real "mother" the kids have ever known. Katherine can have legal custody, but Grace should have "emotional guardianship" (not a real legal doctrine—but a good idea nonetheless in this unusual case).

It might matter, too, what the kids have to say. They’re barely old enough to have a voice, but the judge should ask—and listen—to what they want.

Judge “Solomon” has his work cut out for him in this case—and while there’s a chance the family will work it out without the need for a drawn-out legal battle, there’s also a risk the fight will be ugly because Jackson’s children stand to inherit the entirety of his estate, such as it is, and insurance, money, etc. Whoever wins custody of the kids knows they will be raking in a big pile of dough that, even if it’s held in trust, will support a very nice lifestyle.

Let’s hope the judge uses a super-skeptical judicial lens to assess the motivations behind the custody-seekers and chooses the person who, irrespective of wealth, relationship, or biology, sincerely cares about the kids’ “best interests.” Jackson would want his children to have a better shot at real happiness than he ever had.

Wendy is a former child abuse and sex crimes prosecutor who teaches at New England Law/Boston. Wendy specializes in the representation of crime victims, women and children. She also writes and lectures widely on victims' rights and criminal justice policy. Her expose of the American legal system, And Justice For Some, came out in 2007. A former NFL cheerleader and visiting scholar at Harvard Law School, Wendy lives outside Boston with her husband and five children.