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The 'least worst' way


BOSTON -- Just over a year ago, I declared this column an O.J. Free Zone. Since then, no Bruno Magli shoes have left their footprints over this space. No gloves have been scattered under this byline. Kato Kaelin has not shown his face in my territory.

Today I intend to briefly lift this ban. For the sake of the children.

Forty miles away from the Santa Monica courtroom where Juditha and Louis Brown are suing O.J. Simpson for the "wrongful death" of Nicole, a second courtroom drama is in progress. O.J. Simpson is suing the Browns for custody of his two children.

The Orange County courtroom is closed and there is a gag order muting even the gaggle of O.J. reporters. But inside, a judge -- not a jury but a sole Superior Court judge named Nancy Wieben Stock -- has to figure out and to rule in the best interests of Sydney and Justin Simpson.

Ever since a white Bronco on the L.A. freeways turned a homicide into a national obsession, I have thought of these two children. What must it feel like when your mother is killed and the father you turn to for comfort is accused of her murder?

When these two children went to live with their grandparents, I imagined what it was like in a world of such divided, no, ruptured, family loyalties. The minefield of divorce must seem like a bucolic landscape compared to this terrain.

Since their father's acquittal, Sydney and Justin have traveled every other weekend between Dana Point and Brentwood, transferred like diplomats at a neutral spot from one car to another by intermediaries. Do they keep a different set of emotions or beliefs stashed in each bedroom?

Every custody fight has its angry subplot, its dueling accusations of wrongdoing. But they pale next to this case, which must be framed by both father and grandparents as a second or a third test of innocence or guilt.

Of course, Judge Stock is not allowed to second-guess homicide verdicts while making a custody decision. Nor, if the reports this week are right, is she inclined to accept the argument that wife abuse -- the charge O.J. once admitted to and now incredibly denies -- is proof enough that he would be an unfit father. Few courts deny an abuser visitation rights unless he has directly injured the child.

Most important, California, like many states, favors a parent in custody disputes. This alone has led unnamed "sources" in Page 1 stories to bet on O.J.

But the law is in flux and one idea of a child's best interest may now clash with another, newer view. As Harvard law professor Martha Minow notes, "The principle that gave the biological parent priority is sometimes at war with another principle -- continuity of care." Recurrent skirmishes in that war are between a biological parent and a grandparent who has been primary caretaker.

I don't deny that my prejudice in favor of the Browns is rooted in a deep belief that Mr. Simpson got away with murder. But I don't rest my case on that belief.

A quarter of a life

The Browns have been caring for their grandchildren since their daughter's death in June of 1994. For two-and-a-half years, a quarter of Justin's life, they have provided stability, home, school, family -- as much continuity as possible. Even a measure of protection from the spotlight.

After his acquittal, O.J. left Sydney and Justin with the Browns. He didn't want to disrupt their lives and schooling, he said, in a tacit acknowledgment that the children were doing well with their grandparents.

It was months later that he decided to sue for custody. Was that a father's desire to reunite full time with his children? Or a lawyer's advice to rehabilitate his reputation? Does a fit parent put his children's needs first or his own?

And what if Mr. Simpson is found to have caused Nicole's "wrongful death?" This guilt won't erase the earlier innocence. But under a murderous cloud, Ms. Minow says, "It would be hard to imagine the argument that would find him a better parent than the Browns."

Better parent? After years of caring for their grandchildren, surely the Browns already have leveled the legal playing field with the biological father. They deserve to be considered fairly for the role they performed, as parents.

Sydney and Justin cannot be asked to make the choice. Nor can any court heal the rift between the pieces of their family. The safest course for Sydney and Justin Simpson is to remain where they are -- living with their grandparents, visiting their father -- in some rough semblance of security.

Maybe it's too late to find the "best" or even the "better" interests of the Simpson children. But the judge can rule in the "least worst" interests of two young players in the national drama that is their life.

Ellen Goodman is a syndicated columnist.

Pub Date: 12/05/96

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