Anna Nicole Smith Left Tangled Legal Web

ABC News' Law and Justice Unit asked prominent family law professor Jeff Atkinson at DePaul University College of Law for a quick overview of the web of legal issues that follow Anna Nicole Smith's death.

Atkinson, who also works with the American Bar Association and the National Conference of Commissioners Uniform States Law, offered his thoughts on how the courts now will handle the legal battles over the fortune of Smith's deceased husband, J. Howard Marshall, and the custody of Smith's infant daughter, Dannielynn. Multiple people claim they fathered Dannielynn, including Smith's former boyfriend, Larry Birkhead, and her companion, Howard K. Stern.

Would a will signed by Anna Nicole decide custody of Dannielynn?

Jeff Atkinson: If Anna Nicole executed [signed] a will naming a person as the custodian of Dannielynn in the event of her death, the question may arise of whether that will determine custody. The answer -- at least in most states -- is "No." A court will consider the wishes of a deceased parent, but the court is the ultimate arbiter of what is best for the child, and the court also is obliged to consider the rights to custody of the surviving biological parent (or a person who has been acting as parent).

Was Anna Nicole married at the time of her death?

Atkinson: News reports state that Anna Nicole and Howard K. Stern had a "commitment ceremony" on Sept. 28 in the Bahamas. Generally, the law of the place where a ceremony takes place, or the law of the place where a couple lives, determines if a ceremony is a marriage. I do not know, in detail, what this "commitment ceremony" was, but it does not sound like a marriage. In the United States, states generally require that a valid marriage include issuance of a marriage license by the state and a ceremony at which the parties agree to be married (not just "committed"). Approximately 10 states recognize common law marriages -- by which a couple can be considered to be married without a marriage license or formal ceremony, if the woman and man live together and hold themselves out as a married couple (California and Florida do not recognize common law marriages). It is unlikely that Howard K. Stern and Anna Nicole would be considered to be married -- but I do not know the law of the Bahamas on the issue. The law of the Bahamas is based on English common law.

What law decides who will have custody of Dannielynn?

Atkinson: If a child's biological parent dies, there is a strong presumption under U.S. laws in favor of custody by the child's surviving biological parent. Thus, the man who is found to be Dannielynn's biological father will (probably) have a presumptive right to custody.

The presumptive right to custody, however, can be overcome in exceptional circumstances. Exceptional circumstances include situations in which a third party -- such as a step parent, a grandparent, or a husband who thought he was the biological father but was not -- has been serving in the role of parent. In such circumstances (in many states, but not all states), the person who has been raising the child is entitled to seek custody and may receive custody. The longer the person has been acting as parent, the stronger the case for that person. It is common for third parties who have raised a child for more than three years to receive custody, even if a biological parent is asserting a claim for custody. If a child is only five months old, the case for third-party custody may not be as compelling (but children do form attachments to caregivers by five months of age).

In some states, a husband is conclusively presumed to be the father of a child born during the marriage, even if it turns out the husband is not the biological father. State law varies regarding this presumption. In any case, it does not appear that Anna Nicole was married to Howard K. Stern or anyone else at the time of her death.

Factual issues that will help in making the custody determination include:

      Who is the biological father of the child? (DNA tests should determine that.)

      Has anyone (Howard K. Stern?) been acting as Dannielynn's father? What is this person's level of involvement and contact with Dannielynn?

What court has jurisdiction to decide the custody and paternity of Dannielynn?

Atkinson: The primary laws governing which court may decide custody and paternity in the United States are the Uniform Child Custody Jurisdiction and Enforcement Act (state law) and the Parental Kidnapping Prevention Act (federal law). These laws provide a hierarchy of rules to determine which court is entitled to decide the case.

A. At the top of the hierarchy is a court with exclusive continuing jurisdiction -- which means a court that already (properly) entered a custody order in the case. If a court entered a custody order, that court is entitled to decide further custody (and paternity) issues if the child or one of the parties continues to live in that state. In the case of Dannielynn, this rule does not seem to apply since -- according to the facts I have seen -- there has been no order regarding the custody or paternity of Dannielynn. Larry Birkhead filed a paternity case in Los Angeles on Oct. 2, 2006, but there has been no ruling in the case.

B. If there is no state with exclusive continuing jurisdiction, the next inquiry is whether the child has a "home state" -- i.e., a state in which the child has lived for the last six months or since birth if the child is less than six months old. Dannielynn was born five months ago (on Sept. 7, 2006) in Nassau, Bahamas. I do not know where the child has lived since then, although I note the Los Angeles Times reports that Anna Nicole "took up residence in the Bahamas last year." If indeed Nicole and Dannielynn have had a residence in the Bahamas, the Bahamas is probably Dannielynn home state, and under U.S. law Nassau could be entitled to decide Dannielynn's paternity and custody. A Bahamas court, if it wished, could send the case to the to a U.S. court for determination. If Dannielynn (and Anna Nicole) had more than one residence, the legal situation would be more complicated.

C. If neither of the two preceding rules apply (i.e., if there is no court with exclusive continuing jurisdiction or home state jurisdiction), then a rule of "significant connection jurisdiction" would apply and the first action to be filed may be the action that decides the case (assuming the state in which the action is filed has a "significant connection" to the case). Perhaps the Birkhead action in Los Angeles would be proper under this jurisdictional theory -- although a Los Angeles court could choose to send the case elsewhere.

Some factual inquiries that may help clarify the issues:

      Where has Dannielynn lived since birth?

      Where has Anna Nicole lived since the child's birth?

      Where has the child's father lived since birth? (There is a related question of who is the child's father, and who has been acting as the child's father.)

      Do Dannielynn and Anna Nicole have more than one residence?

What happens to the dispute over the estate of J. Howard Marshall?

Atkinson: The legal battle over the estate of J. Howard Marshall (a $1.6 billion estate) will continue on at least two legal fronts, although since the primary parties -- Anna Nicole and J. Howard Marshall son, Pierce -- are deceased, representatives of Anna Nicole and Pierce, or their estates, will continue the proceedings.

A state court (in Houston) will decide issues regarding the validity and enforcement of J. Howard Marshall's will, and a federal bankruptcy court is likely to decide whether or not Anna Nicole has a valid claim against Pierce for tortious interference with a gift that she expected to receive from J. Howard Marshall. The U.S. Supreme Court, in the case of Marshall v. Marshall decided on May 1, 2006, that federal courts do have power to decide such claims.

Another note on estates: If Anna Nicole did not leave a will, Danniellynn would inherit from Anna Nicole under laws of intestacy.

What happens to the legal claims against TrimSpa and Anna Nicole?

Atkinson: Anna Nicole served as spokesperson for TrimSpa, a weight-loss program. The Federal Trade Commission sued TrimSpa for making false claims about the weight-loss program. The case was settled with a payment by TrimSpa of $1.5 million. A class action suit also was filed against TrimSpa and Anna Nicole. That action is likely to continue -- although it is unusual for a spokesperson to be personally liable for claims against a company for which the spokesperson works.

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