CAN O.J. STILL BE A DAD?

By ELAINE LAFFERTY/ORANGE COUNTY

A jaunty O.J. Simpson tacked through the usual media flotilla waiting outside the pastel-colored government building last Tuesday. He brightened when a young Hispanic man asked for his autograph. But once inside, away from the cameras, Simpson lowered his head and heaved a deep sigh. For this wasn't the Santa Monica courthouse where he's been spending most of the past two months defending himself in the wrongful-death civil suit brought by the families of Nicole Brown Simpson and Ron Goldman. This was the start of yet another trial, in an Orange County courthouse 40 miles away, where he is fighting for custody of his two children against the parents of his slain ex-wife.

It is a fight taking place in almost total secrecy. Not only have all the participants been placed under a gag order, but reporters have been barred from the courtroom altogether, as they typically are in California child-custody cases. There is no jury. Superior Court Judge Nancy Wieben Stock will be the only one to decide whether Sydney, 11, and Justin, 8, should live with their father, or remain with their maternal grandparents, Lou and Juditha Brown. The children have been living with the Browns ever since Simpson was arrested in June 1994. After his acquittal on murder charges last October, he began spending some weekends with them, then in June decided to seek sole custody. The Browns are fighting him because they believe Simpson killed their daughter.

Common sense might dictate that the battle over Simpson's children would wait politely until the conclusion of the civil trial. For one thing, the simultaneous trials are forcing Simpson to shuttle back and forth between two courtrooms. For another, the custody trial (expected to last about five weeks) may conclude before a verdict in the civil trial--a verdict that could, one assumes, have a bearing on the issue of whether Simpson is a fit parent. "It is beyond comprehension that the custody court has seen fit to proceed now," says Martin Guggenheim, a family-law specialist at New York University. Yet Sorrell Trope, a veteran California family-law attorney, points out that the civil trial could drag on for months and be followed by years of appeals. "You have to have a custody decision before then," he says.

The Browns will not have an easy time winning custody. In California, as in most states, the burden of proof is on the party wishing to take a child away from a natural parent. However, courts have become more flexible in recent years, and Judge Stock is reputed to be more amenable than many judges to granting custody to nonbiological parents. "The standard for removing a child from a parent is high," says Trope. "It requires a showing to the court that it would be detrimental to be placed with that parent. The evidentiary standard is also more extreme, almost like a criminal case." The Browns will probably introduce evidence, supported by former friends of Nicole, that Simpson was a neglectful parent even before the murder, preferring the golf course to the school playground. Still, they face a daunting task.

Oddly, even if Simpson were to lose his civil case and be found responsible for his wife's death, the Browns are not assured of winning custody. Professor Elizabeth Bartholet of Harvard Law School points out that there have been cases in which people accused or even convicted of killing a spouse have been awarded custody of their surviving children. "Typically, legal standards require a finding of extreme unfitness," she says. "Unfortunately, it's not clear under this law that a finding that O.J. Simpson killed Nicole establishes unfitness."

Conversely, a favorable verdict for Simpson in the civil case would not automatically assure him of winning custody. "The court could still rather easily find that it is in the children's best interests that they remain with their grandparents," says Guggenheim. "They suffered a very significant trauma when they lost their mother. And the nurturing they were given by the caregivers in the weeks and months after her death was especially important to their development. Therefore, I would expect an expert to say that taking them away now from their grandparents would inflict new harm on them."

And what of the wishes of the children? The general rule in custody cases is that the child's preferences may be considered, but are not the deciding factor. The Browns would like Sydney and Justin to be interviewed by the judge, but she hasn't done so as yet. Sydney in particular seems to be having emotional problems, and the custody court earlier this month ordered her to be examined by a psychiatrist, TIME has learned. On at least one occasion, the girl refused. Even without the media glare, this latest legal wrangle in the Simpson saga will undoubtedly exact a further psychic toll.

--With reporting by Andrea Sachs/New York

With reporting by Andrea Sachs/New York