I was interviewed on Michigan Talk
Radio yesterday about the case involving the infant of Anna Nicole Smith. By
yesterday, it had been established that Larry Birkhead is the biological father
of Dannielynn. One question involved whether Howard K. Stern could or would be
awarded any visitation. In response, I stated that it is my belief that Stern is
what family lawyers call "a legal stranger" to this child and that he has no
right to request or to be awarded any visitation. Any time that he gets to spend
with Dannielynn will be by the grace of Birkhead.
The same is not necessarily true of Anna Nicole's mother, Virgie Arthur who is allegedly seeking guardianship of Dannielynn. While I think a guardianship in her favor has about the same chance as a snowball in Hell since she lacks "standing" (a legal right) to request a guardianship given that the child has a legal biological father, grandparent visitation is a potential. This could only occur, however, upon a finding of unfitness on the part of Birkhead and a finding of fitness on the part of Arthur.
recall that this case started in California. Birkhead filed a paternity action
prior to the birth of Dannielynn prior to her birth as California law provides.
(Michigan law also allows a biological father to file suit prior to the birth of
the child. There are often strategic reasons why a father would wish to do that.
In Michigan, for example, the "100
Mile Rule" is a compelling reason why a father would file prior to the
The news reports are a little sketchy, and it's not clear to me whether the California court yielded all of its authority to hear the case to the Bahamas. (The fact that Dannielynn was born in the Bahamas and was not ever residence in California would be a legal ground for ruling that the suit could not go forward in California and should be heard in the Bahamas. This appears to be the present course).
It's clear that from a paternity standpoint, the Bahamas offered Anna Nicole a better legal setting. Without cooperation from a mother -- a living mother -- a biological father has a difficult, if not impossible, time establishing parentage in the Bahamas. The waters were muddied when Anna Nicole and Howard K. Stern had what at first appeared to be a legal marriage when the baby was a few weeks old. Dannielynn's birth certificate was then changed to reflect Stern as her legal father.
Nevertheless, the California court forced the DNA issue. Once the DNA test established legal parentage, that, combined with the fact that Anna Nicole was no longer alive, meant that Birkhead was easily confirmed as the biological father.
In California, Virgie Arthur could potentially be awarded grandparent visitation, but only if she could establish a prior existing relationship with Dannielynn that should be continued in the best interest of the child. The specific state statute, not dissimilar from many States' grandparent visitation laws after the US Supreme Court ruling in Troxel v Granville, states as follows:
Cal. Fam. Code Section 3102. (a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child's minority upon a finding that the visitation would be in the best interest of the minor child.
(b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order. Emphasis added.
Clearly, if the law in the Bahamas is similar to this, then it is highly unlikely that Virgie Arthur will be awarded any grandparent visitation.
Even if she were awarded grandparent visitation, however, that visitation could be susceptible to challenges in the future. In a case decided in 2004 in California, the grandparent had been awarded visitation, but when, after the ruing in Troxel, the father petitioned the court to terminate this visitation, the trial court so ordered, and the appellate court affirmed, stating:
"The family court went on to balance C.L.'s pre-existing bond with her grandparents against father's right to exercise his parental authority. Relying upon Family Code section 3104, subdivision (f), Troxel v. Granville (2000) 530 U.S. 57 (Troxel), and Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242, 1254-1255, the family court determined that "a custodial parent's refusal to permit grandparent visitation should [not] be considered a factor in favor of visitation."
the family court terminated the visitation order, and the appellate court upheld
the lower court, stating: "In fact, given the practicalities in scheduling
visitation, it is quite common for visitation not to be ordered on a fixed
basis." (omitting citations) Alberto L. v.
Jennifer, B., No. B168463 (Unpublished Cal.App. Dist.2 10/21/2004)
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