Lessons from Michael Jackson’s Death – the Guardian Issue

Michael Jackson died a week ago and provided the world with a great lesson in estate planning. There was a lot of speculation from “experts” and anyone with an opinion on who should be the guardian of Michael Jackson’s three children. The opinions ran one way before Michael Jackson’s will was filed for probate and ran slightly differently afterwards. But there was a certain amount of agreement which should make every parent who has children think or re-think who they have appointed as a guardian for their children if they die young.

Michael Jackson had a very unusual situation with his children. He was divorced, his second ex-wife, who may or may not be the biological mother of his two eldest children (but is legally their mother because she gave birth to those children) possibly gave up her custody rights when she divorced Jackson, and there is a third child, whose mother is unknown. If Jackson didn’t have a will, it was predicted that there would be a huge fight for custody of the three children among the biological mother of the two eldest children, Michael Jackson’s mother, and the nanny who spent many years with the children. The three children could conceivably have been sent to live with different guardians. Because Jackson had a will, naming his mother as the guardian of all three children, the discussion has shifted.

Now, the speculation is whether the mother of the two eldest children will ask the court to be appointed as the guardian of her two children, even if she signed away her rights as a parent. Custody of the third child does not seem to be up for grabs. Michael Jackson’s mother, who was named as the guardian of all three children in the will, will remain as guardian of that child. So, if Michael Jackson named his mother as guardian of all three children, why is there any question as to whether she will remain as guardian of all three?

The answer is that the courts grant custody to the natural parent of a child unless the parent does not want custody or the court finds that the parent is unfit to be a parent. The standard is normally “the best interests of the child” but the natural parent still gets the benefit of the doubt.

What is the lesson for all parents? It is better to name a guardian in your will than to die without a will naming a guardian. Although Michael Jackson’s situation is very unusual, it is common for guardian issues to arise in blended families. Your children with your former spouse will live with him even if your current husband is very willing to raise those children. This is true, even if your ex-husband has barely been involved in his children’s lives. But, if your ex-spouse does not wish to assert his parental rights, the person you name as your children’s guardian will get appointed by the court and will raise your children, as you had wished.

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