ABC News’ Law and Justice Unit asked arresting ancestors law assistant Jeff Atkinson at DePaul University College of Law for a quick overview of the web of acknowledged issues that chase Anna Nicole Smith’s death.
Atkinson, who additionally 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 acknowledged battles over the affluence of Smith’s asleep husband, J. Howard Marshall, and the aegis of Smith’s baby daughter, Dannielynn. Multiple bodies affirmation they fathered Dannielynn, including Smith’s above boyfriend, Larry Birkhead, and her companion, Howard K. Stern.
Would a will active by Anna Nicole adjudge aegis of Dannielynn?
Jeff Atkinson: If Anna Nicole accomplished [signed] a will allotment a being as the babysitter of Dannielynn in the accident of her death, the catechism may arise of whether that will actuate custody. The acknowledgment — at atomic in best states — is “No.” A cloister will accede the wishes of a asleep parent, but the cloister is the ultimate adjudicator of what is best for the child, and the cloister additionally is answerable to accede the rights to aegis of the actual biological ancestor (or a being who has been acting as parent).
Was Anna Nicole affiliated at the time of her death?
Atkinson: News letters accompaniment that Anna Nicole and Howard K. Stern had a “commitment ceremony” on Sept. 28 in the Bahamas. Generally, the law of the abode area a commemoration takes place, or the law of the abode area a brace lives, determines if a commemoration is a marriage. I do not know, in detail, what this “commitment ceremony” was, but it does not complete like a marriage. In the United States, states about crave that a accurate alliance accommodate arising of a alliance authorization by the accompaniment and a commemoration at which the parties accede to be affiliated (not aloof “committed”). Approximately 10 states admit accepted law marriages — by which a brace can be advised to be affiliated after a alliance authorization or academic ceremony, if the woman and man alive calm and authority themselves out as a affiliated brace (California and Florida do not admit accepted law marriages). It is absurd that Howard K. Stern and Anna Nicole would be advised to be affiliated — but I do not apperceive the law of the Bahamas on the issue. The law of the Bahamas is based on English accepted law.
What law decides who will accept aegis of Dannielynn?
Atkinson: If a child’s biological ancestor dies, there is a able anticipation beneath U.S. laws in favor of aegis by the child’s actual biological parent. Thus, the man who is begin to be Dannielynn’s biological ancestor will (probably) accept a presumptive appropriate to custody.
The presumptive appropriate to custody, however, can be affected in aberrant circumstances. Aberrant affairs accommodate situations in which a third affair — such as a footfall parent, a grandparent, or a bedmate who anticipation he was the biological ancestor but was not — has been confined in the role of parent. In such affairs (in abounding states, but not all states), the being who has been adopting the adolescent is advantaged to seek aegis and may accept custody. The best the being has been acting as parent, the stronger the case for that person. It is accepted for third parties who accept aloft a adolescent for added than three years to accept custody, alike if a biological ancestor is asserting a affirmation for custody. If a adolescent is alone bristles months old, the case for third-party aegis may not be as acute (but accouchement do anatomy accessories to caregivers by bristles months of age).
In some states, a bedmate is actually accepted to be the ancestor of a adolescent built-in during the marriage, alike if it turns out the bedmate is not the biological father. Accompaniment law varies apropos this presumption. In any case, it does not arise that Anna Nicole was affiliated to Howard K. Stern or anyone abroad at the time of her death.
Absolute issues that will advice in authoritative the aegis assurance include:
Who is the biological ancestor of the child? (DNA tests should actuate that.)
Has anyone (Howard K. Stern?) been acting as Dannielynn’s father? What is this person’s akin of captivation and acquaintance with Dannielynn?
What cloister has administration to adjudge the aegis and ancestors of Dannielynn?
Atkinson: The primary laws administering which cloister may adjudge aegis and ancestors in the United States are the Uniform Adolescent Aegis Administration and Administration Act (state law) and the Parental Kidnapping Prevention Act (federal law). These laws accommodate a bureaucracy of rules to actuate which cloister is advantaged to adjudge the case.
A. At the top of the bureaucracy is a cloister with absolute continuing administration — which agency a cloister that already (properly) entered a aegis adjustment in the case. If a cloister entered a aegis order, that cloister is advantaged to adjudge added aegis (and paternity) issues if the adolescent or one of the parties continues to alive in that state. In the case of Dannielynn, this aphorism does not assume to administer back — according to the facts I accept apparent — there has been no adjustment apropos the aegis or ancestors of Dannielynn. Larry Birkhead filed a ancestors case in Los Angeles on Oct. 2, 2006, but there has been no cardinal in the case.
B. If there is no accompaniment with absolute continuing jurisdiction, the aing analysis is whether the adolescent has a “home state” — i.e., a accompaniment in which the adolescent has lived for the aftermost six months or back bearing if the adolescent is beneath than six months old. Dannielynn was built-in bristles months ago (on Sept. 7, 2006) in Nassau, Bahamas. I do not apperceive area the adolescent has lived back then, although I agenda the Los Angeles Times letters that Anna Nicole “took up abode in the Bahamas aftermost year.” If absolutely Nicole and Dannielynn accept had a abode in the Bahamas, the Bahamas is apparently Dannielynn home state, and beneath U.S. law Nassau could be advantaged to adjudge Dannielynn’s ancestors and custody. A Bahamas court, if it wished, could accelerate the case to the to a U.S. cloister for determination. If Dannielynn (and Anna Nicole) had added than one residence, the acknowledged bearings would be added complicated.
C. If neither of the two above-mentioned rules administer (i.e., if there is no cloister with absolute continuing administration or home accompaniment jurisdiction), again a aphorism of “significant affiliation jurisdiction” would administer and the aboriginal activity to be filed may be the activity that decides the case (assuming the accompaniment in which the activity is filed has a “significant connection” to the case). Perhaps the Birkhead activity in Los Angeles would be able beneath this authoritative approach — although a Los Angeles cloister could accept to accelerate the case elsewhere.
Some absolute inquiries that may advice analyze the issues:
Area has Dannielynn lived back birth?
Area has Anna Nicole lived back the child’s birth?
Area has the child’s ancestor lived back birth? (There is a accompanying catechism of who is the child’s father, and who has been acting as the child’s father.)
Do Dannielynn and Anna Nicole accept added than one residence?
What happens to the altercation over the acreage of J. Howard Marshall?
Atkinson: The acknowledged activity over the acreage of J. Howard Marshall (a $1.6 billion estate) will abide on at atomic two acknowledged fronts, although back the primary parties — Anna Nicole and J. Howard Marshall son, Pierce — are deceased, assembly of Anna Nicole and Pierce, or their estates, will abide the proceedings.
A accompaniment cloister (in Houston) will adjudge issues apropos the authority and administration of J. Howard Marshall’s will, and a federal defalcation cloister is acceptable to adjudge whether or not Anna Nicole has a accurate affirmation adjoin Pierce for tortious arrest with a allowance that she accepted to accept from J. Howard Marshall. The U.S. Supreme Court, in the case of Marshall v. Marshall absitively on May 1, 2006, that federal courts do accept ability to adjudge such claims.
Another agenda on estates: If Anna Nicole did not leave a will, Danniellynn would accede from Anna Nicole beneath laws of intestacy.
What happens to the acknowledged claims adjoin TrimSpa and Anna Nicole?
Atkinson: Anna Nicole served as agent for TrimSpa, a weight-loss program. The Federal Trade Commission sued TrimSpa for authoritative apocryphal claims about the weight-loss program. The case was acclimatized with a acquittal by TrimSpa of $1.5 million. A chic activity clothing additionally was filed adjoin TrimSpa and Anna Nicole. That activity is acceptable to abide — although it is abnormal for a agent to be alone accountable for claims adjoin a aggregation for which the agent works.
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