Michael Jackson's ex-wife and the mother of his two older children is in line to obtain custody of them, even if the pop star designated another person as their guardian after his death, legal experts said Friday.
Although UC Berkeley law professor Herma Hill Kay said it was "not a slam dunk" that ex-wife Debbie Rowe would win custody, four other experts in family law said she would have the advantage if there is a custody battle.
"She is definitely first in line to get the kids," said Stanford Law professor R. Richard Banks. "In fact, she would have the legal right to have custody of the children unless it was found that she was an unfit mother."
Rowe initially signed a contract waiving her parental rights to Prince Michael Jr., 12, and Paris Michael Katherine, 11. She later changed her mind and went to court to contest the contract.
An appeals court ruled in her favor in 2006, and the custody battle was eventually settled out of court. Law professors said the contract Rowe had signed was clearly illegal.
Assuming that Jackson compensated Rowe for signing away her rights, UCLA law professor Grace Ganz Blumberg said, "You can't buy and sell kids, and that is what would have been going on here. He would have been buying the kids from her."
California law permits a parent to give up custodial but not parental rights in the kind of contract Rowe signed, Blumberg said. The appeals court ruling means that Rowe is the legal mother of the older children, she said, "And if one parent is dead, the other parent is entitled to custody of the child."
USC law professor Scott Altman said a legal battle over Jackson's three children "seems almost inevitable."
Complicating the custody picture is the question of inheritance and the fact that the youngest child, 7-year-old Prince Michael II, was borne by a different woman, a surrogate.
The surrogate mother, whose identity is not known, has been reported to be in Europe. If Jackson signed a contract with the woman while in California specifying that California law would prevail, the woman probably would not be able to obtain custody, lawyers said.
"I think it would be a binding contract here," said Fred Silberberg, a Santa Monica-based family law attorney.
Most clinics now advise prospective parents in surrogacy cases to implant the surrogate with donor eggs to make it more difficult for the surrogate to later try to reclaim the child, USC's Altman said.
"The surrogate is much less likely to win" if she is not the genetic mother, Altman said.
The surrogate also would lose if Jackson had legally adopted the child, said UC Berkeley's Kay.
In deciding custody issues, a court also could consider whether it would harm the children to be separated, Altman said. But a court is not obligated to respect the wishes of a parent stated in a will.
"Most parents who write wills designate someone to be a guardian in the case of their deaths, but usually that becomes operative only when both parents die," he said.
Jackson married Rowe, his former nurse, in 1996 when she was six months pregnant. They divorced in 1999.
Although there is wide speculation that Jackson was not the biological father of Rowe's children, he was the legal father under California law.
Jackson raised his children without their mothers. He said the youngest was conceived with his sperm but that he was barred by contract from disclosing the surrogate's identity.
"Jackson wanted to be the exclusive parent, but kids need a backup," Blumberg said. "People die, so what he did was leave his kids without a parent" who has helped raise them.
Iris Finsilver, a lawyer who represented Rowe in the custody case with Jackson, told the Associated Press that she was certain that Rowe would want custody of her children. She said Rowe was devastated by Jackson's death.Copyright © 2014, Los Angeles Times