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Anna Nicole Smith and The Legal Rights of Unborn Children
Posted: 03/11/07 at 07:50PM
MSNBC News legal analyst, NYC lawyer Lisa Beth Older, Esq., appeared on MSNBC News Saturday and Sunday, raising novel concerns regarding Anna Nicole Smith and the legal rights of unborn children that go to the heart of what is on everyone's mind.
Upon the death of Anna Nicole Smith, and with the parentage of Dannielynn in balance, New York City MSNBC and ABC News Lisa Beth Older, Esq. addressed a serious loop hole in State laws which leave the question of the rights of unborn children to the potential capriciousness of other foreign countries. This breaking news angle on Anna Nicole Smith and the right of unborn children and viable fetuses has the world pondering the fate of Dannielynn and the human rights of all unborn children. Custody, paternity and DNA testing needs to be addressed in these cases as well as in the case of Anna Nicole Smith.
Foreseeing the problem of parental kidnapping of children and forum shopping for custody, paternity and DNA testing results, most States have already adopted UIFSA, the Uniform Interstate Family Support Act, and the UCCJEA, the Uniform Child-Custody Jurisdiction and Enforcement Act, and both sets of laws provide State courts with the power to determine paternity and custody where there is more than one state involved, such as where one parent kidnaps or brings a child across state lines. The laws rely upon the notion of "home state" jurisdiction, which is defined as the Court located where the child is born or has lived six months prior. If Congress does not act to expand the time of "home state jurisdiction" to include the time of pregnancy; a change from six months to fifteen months, and if UCCJEA and UIFSA is not amended Lisa Beth Older argues that the unborn child is potentially deprived of knowing their biological parents and asserting US citizenship.
The UCCJEA fails to safeguard unborn fetuses conceived in the United States. The National Commission has reported to Congress that the Bahamas is currently listed as a country of concern as a country that doesn't act on applications and abide by the rules of the Hague convention for the return of abducted children to the US.
Lisa Beth Older argues that Howard K. Stern, and others like them under the prevailing law, may be encouraged to leave the United States in order to legally circumvent United States law governing paternity and Custody, laws which rightfully give preference to the biological father under the US Supreme Court decision of Stanley v. Illinois. If a child like Dannielynn is conceived in the US but brought to the Bahamas, then it is up to the biological father to rebut the presumption of legal parentage by requesting discretionary blood testing.
In the Bahamas, Lisa Beth Older says, the law presumes that legal parentage and custody and paternity, is in the man who cohabits with the pregnant mother for a significant time and enters into a voidable marriage. This is to the detriment of the biological father and to his unborn fetus. If the Bahamas does not order blood testing on Anna Nicole Smith's the unborn child the child may never know her biological parent. An unborn child has the fundamental human right to know their biological father, and to allow people, such as Howard Stern, to remove an unborn child from US jurisdiction not only sets bad precedent but also encourages other pregnant woman and their friends to flee the United States in an arbitrary effort to defeat the fundamental human rights of all biological fathers and unborn children throughout the world. As such in the ultimate analysis Larry Birkhead has an uphill battle at this point.
Anna Nicole Smith Case, Analysis by Lisa Beth Older on the impact of three recent criminal investigations on the probable outcome of the custody case pending in the Bahamas
Posted: 03/13/07 at 11:50AM
New York City divorce and Family Lawyer Lisa Beth Older, Esq, offers her analysis of the impact of three recent criminal investigations on the probable outcome of the custody case pending in the Bahamas.
Criminality plays no small part in a civil proceeding, even if no criminal charges are made. The burden of proof is lessened in civil proceedings, and the within custody proceeding in the Bahamas is a civil proceeding. Remember how OJ Simpson was acquitted of murder in a criminal case but found to be responsible for wrongful death in the civil case? Witnesses abound that can testify that Howard K Stern may or may not have played a contributing role in the death of Anna and her son, and will hurt his parentage claim for Dannielynn.
There are three criminal investigations of the Anna Nicole Smith story; the first is conducted by the Seminole Indian police in Florida, the second is in the Bahamas on Daniel Smith and the third is focused on the doctor prescribing the methadone found in the bodies of the deceased Daniel Smith and Anna Nicole Smith. Parties vying for the rights of custody over Dannielynn who may have contributed to the death of Anna Nicole Smith or her son, will not likely be deemed a proper custodial parent in the Bahamas.
Witnesses gave damaging information as to Anna Nicole Smith. Dr. Joshua Perber, the medical examiner, has been a voice of reason. Now he states “I became aware of additional evidence" and this evidence is holding up the case. A relative of G. Ben Thompson, who owns the house where Anna Nicole Smith resided, turned over her computer to the Bahamas police. This may provide evidence as to whether the deaths will be classified suicide, homicide or accident. In an article written in the National Ledger on March 11, 2007 the body guard allegedly told police that "Howard K Stern acted strangely" and gave her medicines. There is no concrete evidence pointing to wrongdoing, but whether the person administering them knew they were participating in a negligent or illegal act is relevant in a custody proceeding and will likely be raised in the Bahamas.
In applying the civil law to potentially criminal acts, the fact that Howard Stern was present when Anna's other son Daniel died of an illegal mixture of drugs and was present around the death of Ms. Smith facts are relevant in the custody case in the Bahamas. The Court will have to hear the testimony and decide custody based upon credibility of witnesses. The video of Howard Stern allegedly taping Anna Smith in a drug induced state and saying it was "worth money" further shows little regard for her well being, and is probative as to whether Howard Stern lacks requisite judgment to parent Dannielynn. Add the insidious allegations of Larry Birkhead that Howard Stern brought drugs to Anna Nicole in a duffle bag in the hospital while she was pregnant and raises new custody questions. Forget about the criminal ramifications for a moment. In a civil matter it all comes down to the credibility of witnesses. If the Bahamas court believes Birkhead it can draw an inference that he may not be fit to parent, having possibly endangered the welfare of mother and baby Dannilynn.
Given ongoing criminal investigation into the death of Anna Nicole Smith and her son, Daniel Smith, the disposition of the criminal investigations will likely be conclusive on the custody issues before the Bahamas court on March 16, 2007.
As to further crimes, methadone is an illegal drug in the Bahamas for treatment of pain, which begs the larger question of possible illegal drug trafficking. Any person who participated lacks requisite judgment to raise a child. If the Bahamas Court believes Larry Birkhead's allegation that Howard Stern brought methadone into Anna Nicole Smith's hospital room, this raises an inference that he knew Anna was on methadone while pregnant, and shows poor judgment. Persons vying for custody over Dannielynn need to show judgment superior to that, and the stakes are high. The fate of Dannilynn, brought to the Bahamas under suspicious circumstances, is left in the hands of the Bahamian court.
Lisa Beth Older, Esq. is available for comment at 212-786-0901.