Categories: General
      Date: Jul  1, 2009
     Title: Ask The Lawyer
Question:  With the death of a pop star that had sole custody of his three children, I was wondering, what could happen to Michael Jackson’s three children since he has passed away?

 With the death of a pop star that had sole custody of his three children, I was wondering, what could happen to Michael Jackson’s three children since he has passed away?

 

   Question:  With the death of a pop star that had sole custody of his three children, I was wondering, what could happen to Michael Jackson’s three children since he has passed away?

    Answer:  What happens to a parent’s child upon their death depends upon many factors.  In discussing Michael Jackson’s death, specifically, the factors are:  that he was not married to a parent of his children at the time of his death; that he had sole custody of two of his children at the time of his death; that his youngest child was adopted by Jackson alone, thereby making him parentless; whether or not a Will designates a guardian for his children upon his death; and, whether or not any written court order existed at the time of his death that granted him sole custody and any other person was granted possessory rights to any of this children.

    In Texas, a parent may not “give” their child away through their Will.  In other words, a section in a Will that names a guardian only demonstrates the Decedent’s desire, but is not binding upon a judge or court.  A judge may not follow the desires of a Decedent if it means that a non-parent ends up with the child rather than a living parent.  The provision of a Will that names a guardian or alternate guardian is what the Decedent stated as his or her wishes prior to their death.  When it comes down to it in Court, a judge must determine if a court order regarding the children’s conservatorship (custody), support, possession and access was in effect at the time of the death of the Decedent.  Also, if a living parent survived the Decedent, then the children remain with that parent.

    According to news reports and information available on the Internet, Michael Jackson was married to Debbie Rowe at the time his two oldest children were born.  In Texas, children born during a marriage are also considered as children “of” the marriage.   Upon divorce, the parties determine the conservatorship by agreement, or a judge orders provisions for conservatorship if the parties are unable to reach an agreement.  In Texas, parents must be named as joint managing conservators of their children upon divorce unless some compelling reason exists to appoint one as a sole conservator and the other parent as a possessory conservator.  

    In Texas, the true power of parents does not rest in the title given the divorcing parents (joint conservators, sole managing conservator, possessory conservator).  The rights and duties that each parent or parents retain upon divorce is what makes the difference when looking at which parent has more authority, or the final word when decisions about the children are necessary.  For example, generally one parent has the right to make decisions concerning the children’s education.  The purpose in the past has been that if parents could not agree, one of them must have the “final word.”  There are rumblings in the Family Code that indicate that some of that may change in the future, making parents more equal.

    Michael Jackson’s sole custody document must be considered to determine if Rowe has any rights to step in as the older children’s parent or whether or not she relinquished all rights forever.  If her rights as a parent have never been terminated, then she has legal standing to ask the court to recognize that Jackson has died.  In Texas, a parent would file a “Suggestion of Death” in order for the court to nullify the current conservatorship order.  

    Jackson’s youngest child was adopted by Jackson alone, which means that no other person has any right to step in and ask for possession of him.  Jackson’s Will should prevail regarding his wishes, if his Will names a guardian for his youngest son.

    What all judges must consider, regardless of what a valid court order states, or what a Will states, or what other family members desire, is “What is in the best interest of the children?”  For Jackson’s children, one consideration must be that he has three children born of two different women.  Keeping the children together within the same household would be an important issue if different parties enter into a court battle over the children’s conservatorship.  A huge problem that may potentially arise is that if Rowe has the right to ask that Prince Michael Jackson I and Paris Michael Jackson be placed in her sole custody and control, what about the youngest boy, Prince Michael Jackson II?  Rowe clearly has no legal standing to step in and ask for custody of the youngest boy, which potentially means that the children would be separated from one another.

    Early media reports have been speculative on whether or not the children will be placed with family members in the Jackson family or if a court battle is about to ensue as with what happened when Anna Nicole Smith died.  In that case, Smith married her attorney after becoming pregnant with her daughter, and the biological father stepped in seeking custody.  The ultimate decision came down to biology.  The biological father was given the child.  The husband of Smith had no legal standing to keep the baby, and the grandmother of the child had no standing either.

    Looking at high profile cases allows people to recognize the many issues that may arise when a parent passes away.   Married parents have little to be concerned with, as their children automatically stay with the surviving parent.  Divorced parents also have little to be concerned with as their children are placed in the sole care of that surviving parent after the other parent passes away.  Parents who adopt children who are still married to one another are treated as though the child was a natural born child.  And the same is true if parents who adopted are divorced at the time one of them passes away.  The ambiguity comes into play when children appear to be left without any parent as with the youngest Jackson boy.  A court will have to hear evidence on what is in the best interest of all three of the Jackson children due to the range of circumstances.

    This article is meant for informational purposes only and not as a substitute for sound legal advice.  Forward questions to Ask the Lawyer to lawyer@thedalharttexan.com.