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It’s easy to get so caught up in day-to-day tasks of our everyday lives so much so that we don’t even think about some important things that need to be done. Then, someone or something jars our memory. For instance, the death of a celebrity parent may make you wonder about who will take care of your children if you’re not there. Planning for your child’s care after your death may not be a pleasant thing to think about, but it’s something that needs to be done.

Michael Jackson: Textbook Example

Michael Jackson, the “King of Pop,” died suddenly in 2009. A single father, he left behind three children. They were 7, 11 and 12 years old at the time. Almost immediately after is death, the legal battle over custody of his children began. There was no shortage of people looking for custody, but the two main ones were:

  • Katherine Jackson is Michael’s mother. It was finally determined that Michael named her asl egal guardian of the children in a will he executed in 2002
  • Joe Jackson is Michael’s father. He and Katherine were married at the time of Michael’s death but they were not living together
  • Debbie Rowe is the natural mother of two of the children. One child was born through surrogacy. Rowe gave up parental rights to the children after she and Michael divorced, but a technicality gave her the chance to fight for custody

The Fight Settles

The custody battle lasted about two months. The media and Michael’s fans documented all the details, but in a nutshell, there were legal all sorts of legal questions and problems. Some of the most significant were:

  • The validity of Michael’s 2002 will naming his mother as guardian
  • Joe Jackson’s fitness to raise the children (he’s been accused of abusing Michael as a child)
  • Rowe’s legal rights as a parent and her on-again, off-again claims for custody

In the end, Joe Jackson backed out of the battle, and Rowe never officially filed a petition for custody/guardianship. Katherine Jackson was awarded custody. She and Rowe came to an agreement where Rowe was given visitation rights. There are also reports that the two agreed that Joe Jackson would have limited access to the children.

The Legal Issues

Typically, when a parent dies, the other parent automatically gets custody the couple’s children. When parents are divorced or widowed, like Michael Jackson, there may be a custody battle. Whether celebrities or everyday folks are involved, in any custody battle, the first question that courts examine is: What’s in the best interests of the child? Courts take into account dozens of factors when figuring out the custody arrangement that’s best for the child, such as the:

  • The length and quality of the relationship between the child and the person seeking custody. Was that person always a part of the child’s life, or an “absent parent,” like Rowe?
  • The child’s physical health and safety. Is there a danger the child may be subjected by abuse or neglect
  • The child’s preference, under certain circumstances. Jackson’s oldest children privately made their preferences known to the judge, but it’s not known if the judge followed them

It’s important to keep in mind that the judge is concerned only with the child, not the people seeking custody. A judge may place the child in foster care if, in the judge’s opinion, it’s the best place for the child to be.

What Can I Learn From This?

Even though you may not be an international pop icon, it is always a good idea for you to have a will naming a guardian for your children in the event you unexpectedly die. In fact, you should name more than one (called an “alternate” guardian) in case your first choice is unavailable or unwilling to be guardian. Remember, your guardian takes over only if both parents die or otherwise can’t care for your children. For married couples, you should have matching or “reciprocal” wills where you each name the same guardian in case you both die while your children are still minors. Only in unusual circumstances, like Michael Jackson’s case, will a court refuse to honor your wishes when it comes to giving your guardian custody. As general rules, though:

  • Your guardian will need court-approval if your named guardian isn’t a parent already
  • Unless declared unfit, a non-custodial parent always has preference for guardianship over your named guardian (that’s why Rowe’s presence added to the drama of he custody case

You’ll spend years, hopefully a lifetime, making sure your child is loved, well-cared for and safe. Take some time now to make sure the same happens in case you’re not there sometime in the future. There’s a lot you can do on your own, but make sure you talk to an attorney to make sure it’s done right. After all, your child’s future is at stake!

Questions for Your Attorney

  • How difficult is it for someone to challenge the parents’ directions in a will regarding guardianship of their children, assuming that both parents have died? I know that some family members will not approve of the guardians my spouse and I named in our wills.
  • In my current will, I’ve named different people to take responsibility for my children, physically, and for the assets I’ll leave for them, in a trust. Can you review my estate plan and draw up a new will if needed?
  • If there’s a custody battle over guardianship of my children, can the courts order legal fees to be paid from assets I’ll leave for my kids? Could I prevent those assets from being touched? v
  • If we can help you at the Law Office of Katherine Schnauss Naugle please feel free to call us at (904)366-2703 or email us at [email protected]