California Baby?

Oct. 12, 2006 — -- By any measure, Anna Nicole Smith has had a bittersweet two months. She has gained a daughter and lost a son, declared her baby's father and been scorned by her mother.

Now an ex-boyfriend -- Larry Birkhead -- is suing the former Playboy playmate, saying he is Dad to her newborn baby girl, Dannie Lynn Hope. Smith and attorney Howard K. Stern, however, claim that Stern is the father and have since had a weddinglike commitment ceremony -- white dress, catamaran and all.

The question now is, with the paternity in question, how long will this declaration hold up? And whose business should it be?

California state law assumes that if you're the husband, you're the father, and Stern maintains that he and Smith do plan to wed. But Birkhead's camp said not so fast -- Birkhead wants a DNA test and wants the state to force Smith back to California to make it happen.

Forced Return?

But is it that easy? Michael Kelley, longtime family lawyer and former chairman of the California State Bar Custody and Visitation Committee, specializes in paternity lawsuits. Kelley said Birkhead will have difficulty forcing Smith and baby back to California, adding that Birkhead has no recognized legal connection to the two.

"It's not going to happen," Kelley told ABC News. "He [Birkhead] can't order her anywhere -- there is no jurisdiction in California. He is not the father or the presumed father at this time. He wasn't even at the birth."

As for Birkhead's claim that Smith's household is dangerous for the baby (he requests drug testing for mother and child), Kelley said there could be a countersuit in line for Smith and Stern.

"This could be the biggest slander libel suit of all time," Kelley said. "All of it could just be hearsay and I'm gonna bet $9 million that Smith hasn't yet gotten any order ordering her anywhere. It is ex parte and any lawyer practicing six months would say so."

Debra Opri, Birkhead's lawyer, issued a press release last week saying she has requested that California force Smith's return. The release states that "Anna Nicole Smith deliberately fled the state of California to cut off paternal rights to [Birkhead's] daughter" and "that legal and physical custody be awarded to Birkhead, pending the results of drug testing."

No Doubt in Their Minds

Stern, who is referenced in the document as a third party, told CNN's Larry King last month that he and Smith are in a long-term relationship and that there is no doubt in their minds that the baby is his. Stern maintains the reason he and Smith have remained in the Bahamas is to mourn the loss of Smith's 20-year-old son.

Opri did not reply to repeated phone calls from ABC News. She has, however, spoken out publicly to Anna Nicole Smith, addressing her directly during press conferences.

Smith's attorney, California lawyer Ron Rale, told ABC News he has been bothered by Opri's media addresses.

"I think it is inappropriate," Rale said. "As an attorney, you don't talk to someone's client directly when they have a lawyer." Rale explained that in California law, paternity suits are particularly private matters. Many lawyers believe it is unethical to discuss such proceedings in detail.

"For example," Rale said, "In today's California courtrooms, the parties to a paternity suit are not even listed." And other area lawyers note that a paternity suit is the one kind of case where details are not found in legal search tools such as Lexis-Nexis.

Paternity and Privacy

But while speaking out on pending paternity may very well be unethical, it is not illegal.

Beverly Hills attorney Daniel Jaffe told ABC News that while California paternity suits are treated with additional discretion in the interest of the child involved, there are not specific laws to bar parties from discussing the details, even in press conferences.

"They would need to get a gag order," Jaffe said. "I have never heard of any restrictions against somebody just talking about the case." But he also adds that Birkhead would need to show the court that he was with Anna Nicole at a time when the baby could have been conceived.

California family attorney Joe Langlois explained the state's jurisdiction a step further, saying all steps leading to the paternity and custody battle would have to be within the state that has jurisdiction.

"They would have to prove that they had sex in the state of California at the right time," Langlois said. "For example, if they had a wild weekend in Vegas, too bad!" Langlois said that in California, the assumed father is now Howard K. Stern.

"He took the baby into his home and signed up for the lifetime of that child. He's taking the benefits and burdens of being a dad."