The world learned a lot about how the California criminal justice system works (or does not work) through the O.J. Simpson trial. Recently, New Yorkers (and some following my blog) have been learned about the alleged undue influence of people suffering from dementia through media coverage of the New York criminal trial involving the son and attorney for the son of New York Socialite Brooke Astor.
With the untimely death of Michael Jackson, the public and media may be in a for a crash course on California probate court proceedings involving the guardianship of the person and/or estate of a minor; estate and/or trust administration; and probate and trust litigation. I will try and educate you on some of the issues on this blog.
Already, a petition reportedly has been filed by Katherine Jackson, the grandmother of Michael Jackson’s children, to become the guardian of his children.
Presumably, Katherine Jackson petitioned to be the guardian of the person of the minor children. A guardian of the person is the person who is legally entitled to make all decisions for a minor child which a parent would make, other than financial decisions. A guardian of an estate is entitled to make financial decisions relating to property owned by a minor.
Even if a deceased parent nominates someone to be a guardian of the person of a minor, the nominated person will not necessarily be appointed. A surviving biological parent has many legal rights, though any written agreements between Michael Jackson and the biological mothers of his children may have some influence over a court’s ultimate decision.
California Family Code Section 3041 states, in part, as follows:
“If the custodial parent dies during the child’s minority, the surviving parent immediately becomes entitled to sole custody, unless it is proved by clear and convincing evidence that such custody would not be in the child’s best interest and would be detrimental to the child...” [Emphasis added.]
Family Code Section 3043 tells a court to “consider and give due weight” to the nomination of a guardian of the person by a parent under the Section 1500 et seq. of the California Probate Code.
Section 1514 of the Probate Code provides that in appointing the guardian of a person, the Court is to be governed by the Family Code provisions relating to the custody of a minor. In addition to the sections mention above, Section 3020 of the Family Code provides that
“(a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children...
(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child...”
While Probate Code Section 1514 is clear that a Court “shall” appoint the person nominated by the deceased parent to be guardian of a minor’s estate “unless the court determines that the nominee is unsuitable,” no similar statutory language directs a court to respect the nomination of the guardian of the person, as the best interests of the minor is of the utmost importance.
There is much more to guardianship proceedings than it outlined above, but today is our first day on the subject. More to come.