Battleground

updated 11/30/1998 AT 01:00 AM EST

originally published 11/30/1998 AT 01:00 AM EST

Though Juditha and Lou Brown had been waiting nearly two years for the decision, it still came as a shock. Juditha picked up the phone on Nov. 10 and heard the voice of the couple's lawyer Natasha Roit. "The court agreed with us," said Roit. "Somebody finally heard us." Since December 1996, when an Orange County, Calif., judge granted O.J. Simpson custody of his children Sydney, 13, and Justin, 10, his late wife Nicole Brown Simpson's parents had been fighting to have the ruling overturned and custody restored to them. (The children had been put in their care in June 1994, when O.J. was arrested and charged with their mother's murder.) Roit had momentous news: An appeals court had struck down the lower-court judge's decision, criticizing her for failing to consider evidence suggesting that Simpson had beaten Nicole and had been responsible for her murder. Overwhelmed by the news that she could once again claim custody of her grandchildren, Juditha Brown paused to compose herself, Roit recalls, then asked: "Okay, now what do we do that's best for the kids?"

It will be no simple matter to decide the future of the children, who have been caught between Simpson and his former in-laws since Nicole and her friend Ron Goldman were slain on June 12,1994, outside her Brentwood condominium, while Sydney and Justin, then 8 and 5, slept inside. When Simpson was arrested days later, the children went to stay with the Browns in their Orange County home, where they remained for 2½ years until county judge Nancy Wieben Stock ruled they were better off with their father. Just two months after that decision, a civil-court jury found Simpson liable for the killings and awarded the victims' families $33.5 million from Simpson.

The appeals court blamed Wieben Stock for refusing to consider either evidence implicating Simpson in the murders or diary entries revealing Simpson's "possibly violent tendencies." "The question of whether one parent has actually murdered the other," the court said in overturning Wieben Stock's verdict, "is about as relevant as it is possible to imagine in any case involving whether the surviving parent should be allowed any form of child custody."

Simpson, who has always maintained his innocence, countered immediately with an impassioned defense of himself and his parenting in the court of public opinion. The next day he was on the phone to MSNBC anchor Chris Jansing, declaring on the air, "I don't think any parent in America spends more time with their kids than I do. I take them to school, go play golf and pick them up from school."

In fact, Justin and Sydney show no signs of neglect. "I've seen her running through the schoolyard, arm in arm with mends, laughing and chasing people all around," says one source familiar with Sydney's 300-student L.A. Catholic school. As recently as August, Sydney and Justin submitted letters to the appellate court asking to stay with their father. "Please tell the judges we don't want to move," Sydney wrote.

Yet such requests aren't reliable without in-depth interviewing by a social worker, say divorce experts. "You need to ask, 'Did the kids write it under duress or out of loyalty for the dad?' " says University of Southern California sociology professor Constance Ahrons. And of course no one is capable of reading their minds. "They are aware of their mother's death," says lawyer Roit, who has worked without charge for the Browns, who have yet to collect on the civil-court award. "You can't assume because they're sitting at home playing with a computer they must be happy." She says the Browns also fear for the children's safety. "People say he has never hurt the kids," Roit says of Simpson. "Well, he never killed Nicole before he did it."

The children now live with Simpson in the Pacific Palisades home he has rented since a bank foreclosed on his famous Rockingham home in July 1997. They also see the Browns regularly. "Anytime the kids wanted to or Judy wanted, they'd get together," says a friend of the Browns. That, say friends, is because Juditha Brown has managed to maintain a cooperative relationship with Simpson. "If she hadn't," says a friend, "she wouldn't know what was happening with the kids." Friends say Justin has been a frequent visitor to his grandparents' home, where he likes to play soccer and roam the beach with two cousins who are close to his age—sons of Nicole's sisters Denise and Dominique. On the other hand, Sydney, at 13, now visits less frequently, preferring the company of girlfriends closer to home.

Simpson says he has no desire to keep the children away from their grandparents—that he merely wants to keep physical custody. "If Lou and Judy lived across the street," he told the Associated Press, "they could see the kids every day."

That choice may not be Simpson's for long. Unless he contests the appeals court's ruling, custody will revert to the Browns. If he does contest it, the matter will ultimately be decided at a new custody trial, and who might win is anyone's guess. Simpson would have to prove he is a fit parent despite evidence of domestic abuse, such as 911 tapes and Nicole's accounts in her diaries. He might, in effect, be tried once again for the murder of Nicole and Goldman. Beyond that, "He has to show he has good parenting skills," says L.A. family-law expert Lynn Soodik, "and that his violence would never carry over to the children."

Simpson has in his favor the fact that the children have been living with him for almost two years. Rarely do family courts take children out of a stable domestic situation with a natural parent. "The passage of time is always a factor in cases like this," says Soodik.

Whether or not the case goes to court, Simpson has recently indicated he might be willing to share custody, lightening his child-care burden and freeing himself up for a social life. "I'm 51 years old, but I'm not an old man," he told Court TV. "I'd still like to be able to do adult stuff too."

Though the appellate-court ruling officially returns custody to Juditha Brown, the Browns' lawyer Roit says they will consider the children's well-being first and won't rush to have them moved. Simpson has until Nov. 25 to ask the appeals court to rehear the case or another 25 days to petition the California Supreme Court to overturn the decision. In the meantime, he told MSNBC, he and his children can do without the meddling of outsiders. "I wish America would get over it and leave us alone," he said. "If you'd leave us alone, we'd be fine."

Thomas Fields-Meyer
Lorenzo Benet, Leslie Berestein and Johnny Dodd in Los Angeles

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