Don't believe the noise; Michael Jackson was the father of his children

The news reports this morning about the circumstances of the conception of Michael Jackson's children are suggesting that the information might impact who gets custody of the children. But that just shows ignorance about the difference between legal parenthood and biology. They do not always go together and there is nothing new about that.

So let's start with what's simple. Debbie Rowe gave birth to the first two children. That makes her their mother under California law. An egg donor who intends to be the parent of a child created using her eggs can also be a parent, but obviously the egg donor in this instance, if there was one, had no such intent. That person, if she exists, also never functioned as a mother, so that avenue for claiming legal parenthood is out. Rowe can relinquish her parental rights if the children are adopted, or a court could terminate her parental rights over her objection if certain statutory criteria are met.

Michael Jackson was married to Debbie Rowe when the children were born. That makes him their father. Nothing new or revolutionary about that. If donor semen was used, and the insemination was performed in a medical facility, the semen donor is not a legal parent. Again, nothing new. These laws have been in place for decades.

As for the third child, Jackson was his father because he brought the child into his home and held him out as his own. That's a basis for presumptive parenthood in California, and a case I blogged on just last week held that this does not have to be a biological parent. And, of course, his name is on the child's birth certificate. Again, the use of donor semen in the child's conception gives no legal status to the man who donated the semen. Surrogacy can result in a child having only a father's name on a birth certificate (as apparently happened here). (Here's a Maryland case with that result). I do suspect that Jackson's lawyer went through a legal process to obtain this result.

Anyway, the press may have an endless appetite for the details of the conception of these children, but none of it has anything to do with their legal parentage. Because of that none of the facts complicate the decision on who gets custody of them. Debbie Rowe can ask for custody of her children and will get some preference, but she will not automatically win. I cannot imagine any judge splitting these three children up, so where the first two go, so goes the youngest. For him, anyone wanting custody is a nonparent, so the best interest of the child standard will govern. But his best interest will almost certainly be with his siblings.

All the talk of sperm donors and DNA testing is sensational and must sell advertisements or it wouldn't be getting air time. Even the supposedly reputable CNN is asking: Who is the father of Michael Jackson's children? But no court will order DNA testing, and the results of any such testing would have no legal meaning. The answer to the question is simple. Michael Jackson was the father of those children. Period.