Monday, July 13, 2009

LTG 07-08-09: What about the children?

From the Omaha City Weekly, July 08-14, 2009


Law Talking Guy
Jacko's kids... what now?

By: Patrick Runge
Issue: July 8, 2009

Never let it be said that your faithful Law-Talking Guy is afraid to follow the herd.

Yes, gentle readers, this is a Michael Jackson column, adding my voice to the thousands and thousands of others filling up copy space in newspapers and hours on television talking about the departed singer. But, hey, E! has been running this for a week straight, and I’m only doing one lousy column. So cut me a little slack here.

Actually, the circumstances surrounding Jackson’s death present a teaching moment for some interesting and important legal issues. Most pressing of these is the fate of Jackson’s children.

Jackson had three children, two from ex-wife Debbie Rowe and one from an anonymous surrogate mother. Currently, Jackson’s mother, Katherine, has temporary guardianship over all of the children pending further hearing.

Now, pay closer attention to the previous sentence. Notice that Ms. Jackson has “guardianship” over the children, not “custody” over the children, as has been frequently reported. There’s a difference, and it’s significant.

The difference comes from the fact that parents get a huge advantage over non-parents when it comes to their children in the courts. The United States Supreme Court has recognized that the constitution includes within it the right to parent your own children.

(As a quick aside, if you take a browse through the constitution, you won’t see those actual words anywhere in the document. The Court read a number of different portions of the Bill of Rights together to create the “constitutional right to parent.” You may be thinking the conservative haters of “judicial activism” would be all up in arms about the Court creating a constitutional right out of whole cloth without any text in the document to support it. Yet strangely enough, the conservatives don’t complain about a judicially-created “right to parent.” Makes you wonder, doesn’t it?)

Because there is a constitutional right to parent, any dispute about children between a parent and a non-parent really isn’t a fair fight. In many states, Nebraska included, this unfair fight is called the “parental privilege” principle. It means that, unless the parent is unfit or has abandoned his or her child, a parent will win a dispute over that parent’s child over a non-parent.

That’s why the words “custody” and “guardianship” have different meanings. Parents get to have “custody” over their children, meaning a parent is the one who will make legal decisions for that child. Non-parents don’t get to have “custody.” The best a non-parent can do is get “guardianship,” meaning that a judge appoints that non-parent to make legal decisions on behalf of a child.

But, you may ask, doesn’t that end up in the same place? Well, as ESPN’s college football analyst Lee Corso would say, not so fast my friend. (Whom I raise primarily to point out that college football is only nine weeks away, of course.)

The difference is the stability of the order. If a parent gets custody of a child, that custody will stay in place unless another parent shows there has been a material change in circumstance since the previous order and that a change would be in the child’s best interest, or unless a non-parent shows the parent to be unfit. Conversely, a guardianship can be undone by a parent simply by that parent proving to a court that the he or she is no longer unfit.

Big difference. So the next time you see Matt Lauer on the “Today Show” talking about Jackson’s mother having “custody” of Michael’s children, you’ll know better. Lauer will still make more money and eat at better restaurants than you, but you’ll know better.

So, how will this all fit into the controversy surrounding Jackson’s children? After all, there might be a couple of bucks involved with taking care of the children of the King of Pop.

From all accounts, Rowe, the mother of the oldest two children, has had no contact with them for a number of years. As a result, Rowe is functionally a stranger to the children even though she is their biological mother. Even so, Rowe’s constitutional right to parent her children is intact, and the California court will have to return the children to Rowe unless it finds a reason sufficient to overcome that constitutional right.

I know that seems a little strange, because we’ve all come to think of decisions about children centering around the best interests of the child. And when the people disagreeing about that child are equal, that’s the test that gets used.

But when there are unequal contestants to a child, the constitution kicks in, and the court doesn’t really look at the child. Instead, it looks at the parent and bases its determination on the parent’s actions or lack thereof, not on the child’s interests.

Doesn’t sit well, does it? Well, keep in mind the chaos that could arise if anyone could try to get actual custody of anyone else’s children. People desperate for children of their own would start bringing actions against other parents as a means to end-run the adoption process.

Flawed as it is, the current system makes a lot of sense. After all, Madonna and Angelina Jolie have enough kids already.

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