After pop icon Michael Jackson passed away a week and a half ago, his almost-80-year-old mother, Katherine Jackson, successfully petitioned for temporary guardianship of her son’s three young children. Michael Jackson, 50, had two children with his ex-wife Debbie Rowe: Michael Joseph “Prince” Jr., 12, and Paris Michael Katherine, 11. He also had Prince Michael “Blanket” Jackson II, 7.

Last week, Jackson’s will was filed with the court in Los Angeles. It apparently names Katherine as the preferred guardian of the children in the event of Jackson’s death, with singer Diana Ross as successor guardian if Katherine was unwilling or unable to serve as guardian to the children. Rowe’s lawyers also went to court last week, not seeking custody yet but asking for a short delay in proceedings.

The guardianship hearing will be taken back up on July 13.

Rowe and Jackson married in 1996. The couple had their two children in quick succession and Rowe filed for divorce in 1999. She reportedly gave up her parental rights in 2001 but changed her mind two years later and sought custody in the midst of Jackson’s molestation charges and trial. An appeals court later determined that the termination of rights was done in error and Rowe’s parental rights were restored. She and Jackson entered into a settlement agreement in 2006 after his acquittal, which gave her visitation rights with the children.

Although her lawyers have not yet filed any paperwork seeking custody, Rowe apparently told a member of the media that she wanted her children back and would even be willing to take custody of seven-year-old Blanket in order to keep the children together. She acknowledged that she had no legal right to seek custody of the child who is not biologically hers, Blanket. Blanket’s mother has never been identified and is presumed to have been a surrogate.

The newspapers, tabloids and internet gossip sites have been abuzz with information, rumor and speculation about the children, their biological lineage and their ultimate custody now for almost as long as Jackson has been gone. There have been reports that Jackson’ former dermatologist is the actual biological father, that Rowe was or was not a surrogate and not the biological mother, that Jackson never formally adopted any of the children. And the list of information and mis-information goes on.

With regard to the older two children, the situation seems fairly straight forward. Both Prince and Paris were born to a married couple – Michael Jackson and Debbie Rowe. That couple is presumed by law to be the legal parents of the children. It is my understanding that Michael Jackson and Debbie Rowe are named as parents on both birth certificates.

Even if Jackson and/or Rowe are not the biological parents of the children, California law will look to the intent of the parties involved (including any potential sperm or egg donor) in determining legal parentage. In this case (as in most surrogacy cases), it was the intent that Jackson and Rowe would be the parents and not the donor(s).

That being said, it is also California law that the intended parents are only allowed to be listed on the birth certificate if there is a court judgment naming them as the parents. If the judgment is not entered prior to the baby’s birth, the parents would need to adopt the child to become its legal parent.

I’ve heard of no one stepping forward to claim legal parentage of these children other than Rowe and years of legal wrangling over the custody and rights to the children have already taken place between Jackson and Rowe – so the court will presume that she and Jackson were the legal parents of Prince and Paris. If Rowe is a legal parent, it seems likely that she will be awarded custody of her children with Jackson.

It is not unlike any divorced family in that, if a custodial parent dies, the non-custodial parent has parental custody rights which would trump the wishes of the deceased parent. California law clearly states that when there are two parents with legal rights, as there are here, and the custodial parent passes away, the children can only go to the person named in the will if the surviving parent consents. Regardless of what Jackson’s will says, Rowe still has parental rights to those children that cannot be taken away just because their father preferred that someone else raise them.

The court will, however, still take into consideration the best interests of the children as well. While Rowe’s status as legal parent will carry a lot of weight in court, the judge will still consider the relationships the children have with Rowe and with Katherine Jackson as well as Rowe’s willingness to allow the Jackson family access to the children and Katherine Jackson’s advanced age – among many other factors.

With regard to Blanket, Katherine Jackson probably has a pretty good chance at gaining permanent guardianship. The child’s birth certificate lists Michael Jackson as father and lists no one as mother. This indicates to me that there was some court action – either a pre-birth judgment of parentage or an adoption – after a surrogate birth. Jackson is therefore the legal father of the child. No one appears to have legal maternal rights. Even if a birth mother stepped forward at this point, it seems likely that a court would determine that she never intended to be a parent to the child and would refuse to grant parental rights.

As there is no living legal parent, the court will appoint a guardian. The court still does not have to follow Jackson’s will and name Katherine Jackson if it found such an appointment not to be in the child’s best interests. Blanket will have an appointed attorney to represent his interests in court and that attorney could conceivably protest Katherine Jackson’s guardianship for any of a variety of reasons. It will be interesting to see how the court considers her age in making its decision.

One important note: It appears that all of Jackson’s assets are controlled by a trust and that Katherine Jackson, the children and several children’s charities are beneficiaries of the trust. The trust is a separate and distinct legal entity controlled by its terms and administered by its trustees – none of which are Katherine Jackson or Debbie Rowe. So, while the children will be taken care of financially by their father’s assets and posthumous income, their guardian(s) will not have unfettered control over the entire financial estate.