Who does the law favor in Jackson children custody case?

When retiree Virgil Meyers picked up the phone at 3:30 in the morning, he was not prepared to hear that his youngest daughter had died in her sleep. The shock numbed him but almost at the same time, Mr. Meyers says, "I knew what needed to be done."

About four hours later, he and his wife returned to their Sacramento, Calif., home with their three grandchildren, ages 16, 14 and 12, in tow, determined to seek legal custody from their jailed father.

Katherine Jackson, mother of superstar Michael Jackson, similarly finds herself in the sudden position of tussling for legal guardianship of her late son's three children. But if Debbie Rowe, mother of two of Michael Jackson's children, decides to seek custody at a twice-rescheduled court hearing set for July 20, what are the chances that a 79-year-old grandmother will win?

Not as slim as might have been the case in the past, say family law experts.

"The biological parent doesn't automatically have a right to custody" in California, says attorney Kathleen Kelly, who helps low- and fixed-income grandparents through the Senior Legal Hotline, the state's largest legal-aid service for the elderly. "But," she adds, "just because Michael Jackson put it in his will doesn't mean Katherine Jackson gets to be their guardian, either."

Grandparents as caregivers

Grandparents, who care for about 70 percent of children not living with their parents, typically step up in emergencies, such as death or incarceration of a parent. Though they are often reluctant to formalize their new role, experts say, the legal system is beginning to grant grandparents who are primary caregivers the opportunity to fight for their charges.

"You can't just walk in to a courtroom and say you want to challenge the parent to custody of their child," says New York attorney Gerard Wallace, director of the state's kinship help and referral center. "Procedural hurdles" – such as proving a parent unfit or that the grandparent is the primary caregiver – "are there to protect parent rights."

Only parents' rights to custody and rearing of their children are constitutionally protected, and those rights were reinforced recently in a 2000 Supreme Court ruling.

But states increasingly are recognizing a child's primary caregiver as a legitimate challenger to parental rights.

"The trend is toward more protection for children, less for parents, and more opportunity for caregivers to intervene," says Mr. Wallace.

In California, for example, parents do not have to be found unfit – a difficult thing to prove, family law experts say – before a judge can decide custody on the basis of the best interest of the child.

Wide judicial discretion

Judges in cases like the Jacksons', in which children are not wards of the state, "have very wide discretion to weigh a variety of factors," says Scott Trowbridge, an attorney with the American Bar Association's Center on Children in the Law.

Mrs. Jackson's age – a year shy of the average life expectancy for an American woman – could tip the scales in Ms. Rowe's favor.

"Unless that was the only resort, I'd recommend against adopting or raising a child at that age," says Mr. Meyers, whose first custody hearing since his daughter's death in January is slated for later this month. He worries that the children might have to grieve again, in a very short period of time.

The main factor that courts consider, says Ms. Kelly, is who has cared for and developed a bond with the children. If Michael Jackson's siblings will be close at hand to help raise his kids, that may influence a judge's decision. Most important, a judge will strive to keep the children together, she says.

The mother of Jackson's youngest child, Prince Michael II, also known as Blanket, has never been revealed. Rowe, who secured visitation rights in 2006, had previously given up her parental rights – a move that could diminish any present claim in the eyes of the court. Her lawyer said Tuesday that she would not relinquish her parental right and that she and the Jackson family had not reached an agreement on custody or visitation, according to Associated Press.

"Hopefully, they can work out some mutual agreement if Ms. Rowe did in fact have a relationship with the children," says Jacqueline Garman, a social worker at the Florida Kinship Center who specialized in adoption. "The kids are dealing with a number of losses right now."

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