LIANE HANSEN, host:
This is WEEKEND EDITION from NPR News. I'm Liane Hansen.
Michael Jackson's death continues to make headlines. Last week, it was announced that a memorial service for the King of Pop will be held Tuesday at the Staples Center in Los Angeles. It was also announced that Jackson's ex-wife, Debbie Rowe, may petition a court to be declared the legal guardian of his three children. Rowe is the mother of Jackson's two oldest children. His third child was conceived by a surrogate mother whose identity has never been made public.
A custody hearing that had been scheduled for tomorrow has been postponed for a week at the request of lawyers for Rowe and Jackson's mother, Katherine, who has temporary custody of the children. Legal experts say that when the hearing occurs, the court is likely to be faced with a number of issues with little precedent.
Mark Patt is an attorney with the law firm Trope and Trope, which specializes in family law, and he joins us from his office in Los Angeles. Thanks for your time.
Mr. MARK PATT (Attorney, Trope and Trope): You're welcome.
HANSEN: We should mention, Mr. Patt, that you're not actually working on the case, so you're not privy to many of the details. But given what you have been hearing, particularly from the media, what strikes you as unique about this case? And what unprecedented matters may come before the court?
Mr. PATT: Well, I think what, first of all, is unusual is that there's already been a case involving Michael Jackson and the Ms. Rowe. He was awarded sole custody of the two children in 2000. And then in 2001, Ms. Rowe went to court, strangely, to terminate her own parental rights, which is almost unheard of that a parent would take that action. And thereafter, the court actually granted that request.
But the next year, a couple years later, I think it was in 2004, she went back to court and undid that. The court found that that agreement by the parties to terminate her parental rights was void based on public policy and some other factors. So that background creates a different setting for this particular case.
HANSEN: Are public statements considered evidence in family law cases? In the past, Debbie Rowe said she married Michael Jackson solely to give birth to his children, not to be mother to them. And then after his death, she said she was stepping up to care for them, wanted custody. But her lawyers then made a public statement that she's merely considering whether she wants custody. Will these back and forth statements - how are they going to play into the court's decision?
Mr. PATT: Well, the statements made by her lawyers are meaningless, they're not evidence of anything. Statements made by her conceivably could be an admission of some, if it's a negative fact, contrary to the position she wants to take.
But the real bottom line in this proceeding, it's very difficult for a non-parent to obtain custody of a child. The non-parent must show that award of custody to the parent would be detrimental to the children, and that's a very tough thing to prove. And to make it even tougher is that the standard of proof is what's known in the law as clear and convincing evidence. The general standard in civil law is just preponderance of the evidence. So it's a pretty tough road for the mother of Michael Jackson to get custody just based on the general legal principles.
HANSEN: But according to media reports, Michael Jackson's will makes it clear that he wants his mother to have custody of the children. Is that legally binding?
Mr. PATT: It's not legally binding, but it is legally a factor. The designation of someone in a will or other estate plan to be the guardian of children must be considered by the court. It's not binding in any sense. And certainly, when there's a surviving parent, that's still going to take priority over this preference.
HANSEN: What about Mrs. Jackson's age? I mean she's 79. Does that factor into a court's decision?
Mr. PATT: I don't really think so. Factors about Mrs. Jackson's age, health, ability to care for, that this would be in the best interest of the children, who don't even really get to that step, if they can't prove detriment in the first place, I don't think it would matter.
HANSEN: The oldest children are 12 and 11 years old, the children that Debbie Rowe had, but she's rarely seen them during their lifetimes. Will that be a factor?
Mr. PATT: It absolutely should be a factor. Let's say someone hasn't seen the children, literally for four or five years, no contact, not even a birthday card, holiday card, nothing, that then gets to this detriment issue. So, yes, I think the specifics facts in what the Jackson family would want to prove is to show whether there is, in fact, some relationship, whether there would be psychological harm just to thrust these children back in with a mother they literally don't even know.
HANSEN: What about the youngest child whose mother is an unknown? Does his case become separate from the other two?
Mr. PATT: It is separate, although I think it's going to have some impact on it in the following sense, there is a preference to keep children together. And that might have some impact on the case with the two older children in the sense of a court wanting to keep the children intact. But, again, we still have to deal with that first detriment standard before we get anywhere else.
HANSEN: Mark Patt is an attorney who specializes in family law. He joined us from his office at the law firm Trope and Trope in Los Angeles. Thank you, Mr. Patt.
Mr. PATT: You're welcome.