MICHAEL JACKSON'S CASE ILLUMINATES THE NEED FOR PARENTS TO DO A WILL

Michael Jackson's mother, Katherine Jackson, was granted custody of Michael's three minor children this week, in accordance with the terms of Jackson's will. Although it appeared that Deborah Rowe, the biological mother of the children, was also a contender for the custody of the children, it is likely that arrangements were made far in advance with her, and she was just rattling her sword, possibly for three reasons. First, she was secured visitation rights with the children; second, the children will never be able to accuse her of turning her back on them; and last, although nothing was reported, the cynical lawyer part of me assumes that there was some financial remuneration for her concession to Mrs. Jackson, although nothing was reported to this effect.

But what if Michael Jackson, being the vibrant entertainer that he was, had procrastinated, and speculated that he had longevity in his family going for him, and had not created his will? Would Mrs. Jackson have prevailed over the biological mother of the children for custody in a court of law? Conversely, what if Deborah Rowe was serious in her attempt to secure the custody; would Jackson's will have prevented her?

The California Probate Court, like its Family Law Court, is always guided by what will be in the best interests of the children. But how does a court know what is in the children's best interests? As in all litigated matters, the court receives evidence and bases its judgment on the facts as presented and the applicable law. What better evidence can a court receive than a guardianship nomination from the one person who is the most bonded with the child, the most knowledgeable about the child and the child's needs, and most concerned about the welfare of the child, than the child's parent? This is why it is essential for all parents, irrespective of the parent's age, to have a will. In California, wills provide for the nomination of the guardian.

Does a nomination of a guardian in a will guarantee that the court will appoint the nominee? Such is not the case, however, the will provides strong evidence of the parent's intentions and wishes. it is "a voice from the grave" giving the court valuable guidance in making its decision. A person in a black robe who is a stranger to the family, is going to lean heavily on the recommendations of the parent and it will be an uphill battle for someone attempting to thwart the parent's desires.

All of this is not to say that a will's nomination is always followed. Parents who nominate someone other than the biological parent (as in situations where the parents are divorced or were never wed), may not have their wishes observed. Likewise, an older child, (depending on the court, ages 7 through 18), will likely be allowed to be heard on the matter (usually through court appointed counsel), and their desires will be given strong consideration.

You have heard the old saying that if you don't have a will, the state has one for you. In a way, it is true. There is a statutorily prescribed "preference" as to whom the court shall award custody. A biological parent has First Priority. this means that there is a presumption that the biological parent is the person who will be in the child's best interest to be appointed guardian. The result of the presumption is that anyone else must overcome that presumption with strong evidence to the contrary, as the law is on the side of the bio parent. A grandparent has Second Priority. But wait....couldn't there be four grandparents? Therein lies the lawsuits. The state has a whole list of priorities, but you get the picture. The state's idea of what is good for the children may not match the parents' ideas. Parents should do a will and update it every few years to make sure it reflects their intentions.