Dannielynn Stern paternity case

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The Dannielynn Hope Marshall Stern paternity case involves the daughter of the late Vickie Lynn Marshall (better known as Anna Nicole Smith) who was born September 7, 2006 in Nassau, The Bahamas.

The child is considered a citizen of the United States since she was born in The Bahamas to an American mother. However, it's unknown if her guardian has secured a passport or travel document from the United States Embassy in The Bahamas for the baby to be able to travel to the United States.

Smith's former love interest photographer Larry Birkhead and former lawyer turned live-in handler/escort Howard K. Stern, among others, claim to be the father of Smith's daughter, Dannielynn. Stern is listed on her birth certificate. At issue in a California court is who fathered the girl, who could inherit millions of dollars from Smith's estate.

1 Name change
2 Paternity Challenges
- 2.1 Paternity claims
- 2.2 Potential paternity
  - 2.2.1 Alexander Denk
  - 2.2.2 J. Howard Marshall
3 California glossary of legal rules
- 3.1 California Family Code Section 7550-7558
4 Laws related to case
5 Footnotes

[edit] Name change

A little over a month after her birth, a copy of the baby's disputed second birth certificate dated October 11, 2006 was made public showing she was renamed and registered as Dannielynn Hope Marshall Stern on October 9, 2006.^[1] From September 7, 2006 to October 11, 2006 the baby was in the records as Hannibel (Hannah) Rose Hogan.

After the birth of her daughter, according to G. Ben Thompson, a former boyfriend of hers who is a real-estate developer in South Carolina, Smith wanted to put him down as the father on the birth certificate, but he refused knowing that she repeatedly told him Birkhead is the father. Thompson also was not convinced since he had a vasectomy.^[2] ^[3] Although Stern is named as the father on the certificate, attorney Dion Smith Jr. signed his name where Stern's signature should be. This discrepancy may make the birth certificate invalid so that it could be possible for a new birth certificate to be asked for and a DNA test sought to determine the father's identity.^[4]

The name Dannielynn is a tribute to Smith's deceased son and supposedly the "Lynn" in the name came from son Daniel calling his mother "Mama Lynn".^[5] Smith was also said to be inspired for the name by Britney Spears who in September 2006 considered naming her child Jailynn which was Spears' parents' names, Jaime and Lynn, put together.^[6] Lynn was also the real birth middle name of Vicki Lynn Hogan who was known by the stage name Anna Nicole Smith. Stern announced the name change on September 26, 2006 just less then two weeks before the second birth certificate was issued.

[edit] Paternity Challenges

In a Florida court to decide Smith's final resting place, the matter of paternity was also to be settled. Birkhead petitoned the court to ask Howard Stern to submit to a DNA test on February 20, 2007 but at the time Howard Stern stated he was not willing to do so in a closed conference with Judge Seidlin. The judge has put off the paternity question until after the issue of the location of Anna’s burial is decided.

At the request of Smith's mother, Virgie Arthur, a Bahamian judge issued a temporary injunction on February 13, 2007, preventing Howard Stern from taking Smith's daughter out of The Bahamas.

On February 22, 2007 a Florida judge awarded custody of Smith's body to Miami lawyer Robert Millstein, the guardian ad litem for Dannielynn.

[edit] Paternity claims

[edit] Larry Birkhead

Birkhead was Smith's ex-boyfriend and is a freelance entertainment reporter/photographer in Los Angeles, California who has had work published in USA Today.^[7] By May 2006, however, following an argument over his commitment to his work Birkhead said Smith had ostracized him and had publicly anointed Howard Stern the father. Two months later, Stern and Smith moved to The Bahamas to escape the paternity suit and the press. Birkhead denied receiving money for media interviews, though he has received royalties for archived pictures he took of Smith.

According to Birkhead on February 21, 2007 while on the stand, he and Smith lived together from August 2004 to April 2005 – and in January 2005 Smith told him she was pregnant, but a month later lost the baby. Smith's former friend Laurie Payne in sealed court documents filed November 2, 2006, said Smith was pregnant with another one of Birkhead's children before Dannielynn, but she miscarried.^[8] After the miscarriage, Birkhead testified that he and Smith separated, but reunited again on New Year's Eve 2005. Around Valentine's Day 2006, Smith informed him that she was pregnant with his child. Birkhead also described visiting a pregnant Smith in the hospital in April 2006, when, he says, "she was trying to get off medications," and he says he witnessed Stern taking pills out of a duffel bag and giving them to Smith. On another occasion during Smith's stay in the hospital, she had Birkhead put his thumbprint in a baby book that listed him as the father. Birkhead said he "felt sorry for Mr. Stern," so Smith added Stern's name the baby book, as "Uncle Howard."^[9]

[edit] Mark Hatten

Hatten was another of Smith's former live-in boyfriend of two years. He is serving a seven year eight month sentence in Pleasant Valley State Prison for making terrorist threats to Smith and is up for parole on December 24, 2007. Hatten's sister Jackie confirmed, he gave Smith a sperm donation the time they dated prior to his incarceration.^[10] Hatten has also corresponded from prison about Smith with her mother, the entertainment news show Extra, and the online tabloid magazine TMZ.com signing his letters Mark "Hollywood" Hatten. ^[11] In his November 2006 correspondence with Extra, Hatten vowed that he would officially drop the Marshall v. Marshall case because it had "ruined the lives" of Smith and her son.^[12] Hatten also claimed in his correspondence to Extra and TMZ.com that Smith miscarried two of his children in 2000 and 2001.

He has also came forward to claim paternity of the baby.^[13] Other sources:[1][2] Hatten's sister also said that her brother cannot be believed because Smith "did tell me Larry Birkhead was the father." Hatten's attorney Paul Fegen told Extra they plan to file a paternity claim.^[14]

[edit] Howard K. Stern

Howard Stern was Smith's attorney who was named executor of her Will which was drafted in 2001 by Eric James Lund, Esq.^[15] He left his law firm to become her platonic live-in handler/escort and admitted on the stand that Smith became his sole source of income by paying his expenses, giving him spending money and buying the home in The Bahamas. Stern denied that he had received money from media interviews he has conducted since Smith's death, though he admitted that he gave an interview to Entertainment Tonight on a flight that the show chartered immediately after her death.^[16] ^[17] As a lawyer of Smith's in the continuing litigation over the estate of her late husband, billionaire J. Howard Marshall, he would be entitled to a contingent fee of roughly $5 million, five percent of any money she was awarded.^[18]

He has claimed to be the biological father of baby Dannielynn Hope Marshall Stern. Following the death of the baby's half-brother Daniel Wayne Smith, Smith put his name on the disputed second birth certificate issued for the baby then known as Hannibel Rose.^[19] Stern's sister, Bonnie, says Smith told her months before the birth that Birkhead could be the father. "When I spoke to (Smith) in March, when she found out she was pregnant, I took her shopping, and she told me the baby was due in mid-October, and that one other person could have been the father and that was Larry Birkhead, but nobody else."^[20] Stern is seeking to retain custody of the baby. He is also seeking to be confirmed co-executor of Smith's will in order to manage and distribute the estate which is expected to be worth millions.^[21] During the duration of legal proceedings Stern has temporary possession of the baby in The Bahamas.

[edit] Frédéric Prinz von Anhalt

Prinz von Anhalt is the husband of Zsa Zsa Gabor who had Smith as a mistress for 10 years.

He has been quoted as saying that he could potentially be the father of Smith's daughter and said he would file a lawsuit if Dannielynn is turned over to Stern or Birkhead by the courts.^[22] According to the Associated Press, on February 12, 2007 Prinz von Anhalt announced that he will file a paternity claim and that his marriage likely will be over if his claims of parentage prevail.^[23] On February 15, 2007, he filed legal documents at a courthouse in Santa Monica, California seeking a DNA test to determine if he is the father of the baby.^[24]

On February 20, 2007, he took a lie detector test in his attorney's office in Los Angeles. Von Anhalt passed three lie detector tests that week, according to his attorney. The tests included questions about whether he had an affair with Smith and whether he could possibly be the child's father.^[25] On March 23, 2007, he submitted a DNA sample to a Los Angeles clinic even though he is not involved in the current paternity suit between Stern and Birkhead. He does not have a sample of the baby's DNA to analyze against, nor does he have a court order to submit to testing, but has stated that he wants to be prepared if his paternity case continues.^[26]

[edit] Potential paternity

[edit] Alexander Denk

Denk an actor who according to his Beverly Hills, California attorney, Cyrus Nownejad, in a joint television interview also said that he was Smith's confidant, he worked for her as her personal trainer, and also was her bodyguard and chef. Denk is also friends with Stern. In the interview with Julie Banderas, Denk said he and Smith were in a relationship and that he knew her for five and a half years. He added that they were intimate on and off for five years, but was not there 24 hours a day.^[27]

He has reportedly told the entertainment news show Extra that he had an affair with his former employer, and that it's possible he could be the baby's father. On the show he claimed he and Smith had a passionate love affair that lasted for two years and that Smith suffered from life threatening seizures, for which she was on medication. When asked if Smith ever revealed to him the identity of her daughter's father, Denk responded, "She always told me she wanted to have her kids with me."^[28] Denk is not certain he is the baby's father and told Banderas that Smith "always told me I want you to be there and care for Dannielynn no matter what, no matter who is the father, because I took care of Anna with her health and everything, and she wanted to make sure her baby is healthy. And also this thing about the dieting and stuff, she doesn't want her baby to be overweight and obese. She wants to make sure she is healthy."

[edit] J. Howard Marshall

Smith's late second husband.

Donna Hogan, Smith's younger half-sister, has said that the model froze the sperm of Marshall prior to his death. The newspaper says Hogan wrote in her unpublished manuscript about her sister, entitled Train Wreck, that "To her family, she hinted that she had used the old man's frozen sperm, and would be giving birth to Howard Marshall's child".^[29] However, the publisher of Hogan's book described the newspaper's claims as a hoax.^[30]

[edit] California glossary of legal rules

Acknowledged Father
An acknowledged father is any biological father of a child born to unmarried parents for whom paternity has been established by either the admission of the father or the agreement of the parents. An acknowledged father must pay child support.

Presumed Father
If any of the following are true, a man is presumed to be the father of a child, unless he or the mother proves otherwise to a court:

he was married to the mother when the child was conceived or born, although some states do not consider a man to be a presumed father if the couple has separated he attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the "marriage." he married the mother after the birth and agreed either to have his name on the birth certificate or to support the child, or he welcomed the child into his home and openly held the child out as his own. In some states, the presumption of paternity is considered conclusive, which means it cannot be disproven, even with contradictory blood tests. In Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court upheld California's presumed father statute as a rational method of protecting the integrity of the family against challenges based on the due process rights of the father and the child. A presumed father must pay child support.

Equitable Parent
In Michigan (Atkinson v. Atkinson, 408 N.W.2d 516 (1987)) and Wisconsin (In re Paternity of D.L.H., 419 N.W.2d 283 (1987)), a spouse who is not a legal parent (biological or adoptive) may be granted custody or visitation under the notion of equitable parent.

Courts apply this concept when a spouse and child have a close relationship and consider themselves parent and child or where the biological parent encouraged this relationship. If the court grants an equitable parent custody or visitation, then the parent will also be required to pay child support.

Unwed Father
An unmarried man who impregnates a woman is referred to as an unwed father. Unwed fathers have few rights concerning their children. For example, an unwed father does not have the right to require the mother of the child to obtain his consent, or even notify him, before she undergoes an abortion. If the mother decides to bear and keep the child, however, the unwed father will be required to pay child support if a court determines or he acknowledges that he's the father; in addition, he has the right to visitation with his child and may seek custody.

Stepfather
A stepfather is not obligated to support the children of the woman to whom he is married unless he legally adopts the children.

I want the father of my child to pay child support. How can I legally establish the paternity of the man whom I know is my child's father?

A court suit filed to have a man declared the father of a child is called a paternity action. It can be brought by either the mother or the father. If paternity is established, the court will order the father to pay child support and grant him custody or visitation rights.

Today, blood and DNA tests can affirmatively determine paternity with a 99.99% accuracy, and can rule out paternity with 100% accuracy.

Most paternity actions are initiated by welfare officials who provide TANF (Temporary Aid to Needy Families) to the mother and are required by law to seek reimbursement from the father. The mother must cooperate in these proceedings; failure to do so can result in a reduction or loss of her TANF grant.

Paternity actions are sometimes called establishment hearings, filiation hearings, or parentage actions.

Adulterine Bastard
Adulterine bastard, though not used in many places, is a term used to describe a child born to a married woman when the woman's husband is not the father of the child. This may occur if a woman becomes pregnant by someone other than her husband during the marriage; if a woman enters the marriage already pregnant (by someone other than her husband); or if a woman, without her husband's consent, becomes pregnant through artificial insemination by donor.

In the past, many divorcing husbands attempted to evade paying child support in these situations, claiming that the children were adulterine bastards and therefore not "theirs." Many states, however, have laws which irrebuttably presume (that is, the presumption cannot be disproved) that a child born during a marriage is the child of the husband, regardless of who the biological father is. ^[31]

[edit] California Family Code Section 7550-7558

7550. This chapter may be cited as the Uniform Act on Blood Tests to Determine Paternity.

7551. In a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person who is involved, and shall upon motion of any party to the action or proceeding made at a time so as not to delay the proceedings unduly, order the mother, child, and alleged father to submit to genetic tests. If a party refuses to submit to the tests, the court may resolve the question of paternity against that party or enforce its order if the rights of others and the interests of justice so require. A party's refusal to submit to the tests is admissible in evidence in any proceeding to determine paternity. For the purposes of this chapter, "genetic tests" means any genetic test that is generally acknowledged as reliable by accreditation bodies designated by the United States Secretary of Health and Human Services.

7551.5. All hospitals, local child support agencies, welfare offices, and family courts shall facilitate genetic tests for purposes of enforcement of this chapter. This may include having a health care professional available for purposes of extracting samples to be used for genetic testing.

7552. The genetic tests shall be performed by a laboratory approved by any accreditation body that has been approved by the United States Secretary of Health and Human Services. Any party or person at whose suggestion the tests have been ordered may demand that other experts, qualified as examiners of blood types, perform independent tests under order of the court, the results of which may be offered in evidence. The number and qualifications of these experts shall be determined by the court.

7552.5. (a) A copy of the results of all genetic tests performed under Section 7552 or 7558 shall be served upon all parties, by any method of service authorized under Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 of the Code of Civil Procedure except personal service, no later than 20 days prior to any hearing in which the genetic test results may be admitted into evidence. The genetic test results shall be accompanied by a declaration under penalty of perjury of the custodian of records or other qualified employee of the laboratory that conducted the genetic tests, stating in substance each of the following:

(1) The declarant is the duly authorized custodian of the records or other qualified employee of the laboratory, and has authority to certify the records.

(2) A statement which establishes in detail the chain of custody of all genetic samples collected, including the date on which the genetic sample was collected, the identity of each person from whom a genetic sample was collected, the identity of the person who performed or witnessed the collecting of the genetic samples and packaged them for transmission to the laboratory, the date on which the genetic samples were received by the laboratory, the identity of the person who unpacked the samples and forwarded them to the person who performed the laboratory analysis of the genetic sample, and the identification and qualifications of all persons who performed the laboratory analysis and published the results.

(3) A statement which establishes that the procedures used by the laboratory to conduct the tests for which the test results are attached are used in the laboratory's ordinary course of business to ensure accuracy and proper identification of genetic samples.

(4) The genetic test results were prepared at or near the time of completion of the genetic tests by personnel of the business qualified to perform genetic tests in the ordinary course of business.

(b) The genetic test results shall be admitted into evidence at the hearing or trial to establish paternity, without the need for foundation testimony of authenticity and accuracy, unless a written objection to the genetic test results is filed with the court and served on all other parties, by any party no later than five days prior to the hearing or trial where paternity is at issue.

(c) If a written objection is filed with the court and served on all parties within the time specified in subdivision (b), experts

appointed by the court shall be called by the court as witnesses to testify to their findings and are subject to cross-examination by the parties.

(d) If a genetic test reflects a paternity index of 100 or greater, the copy of the results mailed under subdivision (a) shall be accompanied with a voluntary declaration of paternity form,

information prepared according to Section 7572.

7553. The compensation of each expert witness appointed by the court shall be fixed at a reasonable amount. It shall be paid as the court shall order. The court may order that it be paid by the parties in the proportions and at the times the court prescribes, or that the proportion of any party be paid by the county, and that, after payment by the parties or the county or both, all or part or none of it be taxed as costs in the action or proceeding.

7554. (a) If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly.

(b) If the experts disagree in their findings or conclusions, or if the tests show the probability of the alleged father's paternity, the question, subject to Section 352 of the Evidence Code, shall be

submitted upon all the evidence, including evidence based upon the tests.

7555. (a) There is a rebuttable presumption, affecting the burden of proof, of paternity, if the court finds that the paternity index, as calculated by the experts qualified as examiners of genetic markers, is 100 or greater. This presumption may be rebutted by a preponderance of the evidence.

(b) As used in this section:

(1) "Genetic markers" mean separate genes or complexes of genes identified as a result of genetic tests.

(2) "Paternity index" means the commonly accepted indicator used for denoting the existence of paternity. It expresses the relative strength of the test results for and against paternity. The paternity index, computed using results of various paternity tests following accepted statistical principles, shall be in accordance with the method of expression accepted at the International Conference on Parentage Testing at Airlie House, Virginia, May 1982, sponsored by the American Association of Blood Banks.

7556. This part applies to criminal actions subject to the following limitations and provisions:

(a) An order for the tests shall be made only upon application of a party or on the court's initiative.

(b) The compensation of the experts shall be paid by the county under order of court.

(c) The court may direct a verdict of acquittal upon the conclusions of all the experts under Section 7554; otherwise, the

case shall be submitted for determination upon all the evidence.

7557. Nothing in this part prevents a party to an action or proceeding from producing other expert evidence on the matter covered by this part; but, where other expert witnesses are called by a party to the action or proceeding, their fees shall be paid by the party calling them and only ordinary witness fees shall be taxed as costs in the action or proceeding.

7558. (a) This section applies only to cases where support enforcement services are being provided by the local child support agency pursuant to Section 17400.

(b) In any civil action or proceeding in which paternity is a relevant fact, and in which the issue of paternity is contested, the local child support agency may issue an administrative order requiring the mother, child, and the alleged father to submit to

genetic testing if any of the following conditions exist:

(1) The person alleging paternity has signed a statement under penalty of perjury that sets forth facts that establish a reasonable possibility of the requisite sexual conduct between the mother and

the alleged father.

(2) The person denying paternity has signed a statement under penalty of perjury that sets forth facts that establish a reasonable possibility of the nonexistence of the requisite sexual contact between the parties.

(3) The alleged father has filed an answer in the action or proceeding in which paternity is a relevant fact and has requested

that genetic tests be performed.

(4) The mother and the alleged father agree in writing to submit to genetic tests.

(c) Notwithstanding subdivision (b), the local child support agency may not order an individual to submit to genetic tests if the individual has been found to have good cause for failure to cooperate in the determination of paternity pursuant to Section 11477 of the

Welfare and Institutions Code.

(d) The local child support agency shall pay the costs of any genetic tests that are ordered under subdivision (b), subject to the county obtaining a court order for reimbursement from the alleged father if paternity is established under Section 7553.

(e) Nothing in this section prohibits any person who has been ordered by the local child support agency to submit to genetic tests pursuant to this section from filing a notice of motion with the court in the action or proceeding in which paternity is a relevant fact seeking relief from the local child support agency's order to submit to genetic tests. In that event, the court shall resolve the issue of whether genetic tests should be ordered as provided in Section 7551. If any person refuses to submit to the tests after receipt of the administrative order pursuant to this section and fails to seek relief from the court from the administrative order either prior to the scheduled tests or within 10 days after the tests are scheduled, the court may resolve the question of paternity against that person or enforce the administrative order if the rights of others or the interest of justice so require. Except as provided in subdivision (c), a person's refusal to submit to tests ordered by the local child support agency is admissible in evidence in any proceeding to determine paternity if a notice of motion is not filed within the timeframes specified in this subdivision.

(f) If the original test result creates a rebuttable presumption of paternity under Section 7555 and the result is contested, the local child support agency shall order an additional test only upon request and advance payment of the contestant.^[32]