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Filan: Stakes high in Anna Nicole paternity case

DNA will ultimately decide paternity of Anna Nicole's daughter

Anna Nicole's ex: 'I'm the father'
Oct 2: Anna Nicole Smith's former boyfriend Larry Birkhead says he is the father of her new daughter. Birkhead tells MSNBC's Rita Cosby he has filed suit against Anna Nicole and wants a DNA test.
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It looks like we are in for a fight, and one that will play out in the media, rather than behind closed courtroom doors.  

Larry Birkhead, Anna Nicole’s Smith ex-boyfriend, is trying to drag Smith into a California courtroom to prove that he is the baby's father.

According to Birkhead, all throughout her pregnancy Smith told him he was the baby's father.   He says he went to doctor's visits with her and looked at sonograms.  But at the last minute, Smith moved to the Bahamas where she gave birth to a daughter, without Birkhead by her side.

Instead, her lawyer, Howard K. Stern, was with her when she delivered her daughter.   Stern has since announced on national television that he is the baby's father.  And they remain in the Bahamas, far from the reach of a U.S. court.   Or are they?

Birkhead has filed a paternity suit in Los Angeles, Calif.,  and his lawyer says they served Smith with the papers in the Bahamas on Monday.   This is called service of process, and it has to be done legally in order for the court to have personal jurisdiction over Smith. 

Fight as they may, and they will, the California court is most likely going to order Smith into court, and order her and her baby's DNA tested.

But first things first.  The opening legal battle in this case is going to be whether the California court has jurisdiction over the Bahamian resident -- in other words, if she was properly served.   The process is a bit more complicated when you are talking about interstate service of process, and even more when you are talking about "inter-country."   But it’s not impossible and it can be done.

Smith's lawyers will most likely challenge the service of process by filing a motion to dismiss the paternity suit.   If the court does not dismiss the action, then Smith has three choices.  She can appeal, appear, or fail to do either, in which case a default judgment will issue against her.  

Once we get through the procedural hurdles, then we can get to the merits of the case.   The merits will be decided very simply, based on DNA.  DNA results in paternity cases are 99.9 percent certain, so there will be no mystery at the end of the day.  

Birkhead's lawyer, Debra Opri, posed this question on the courthouse steps, minutes after the closed door proceeding ended:   If Smith is so sure that Stern is the father, and so sure that Birkhead isn't, why doesn't Smith just have her and her daughter's blood drawn?    Why doesn't she just consent to paternity testing?

Birkhead seems to be trying to fast track his lawsuit by claiming that Smith is an unfit mother and the welfare of the child is in danger.   The court, by continuing the case to Oct. 26, seems not to have been convinced emergency action is warranted.  But if Birkhead can establish that Smith is an unfit mother, and if Birkhead is the father, he would be able to petition the court for visitation, custody and child support.   Given Smith's monthly income, the child support award will be significant. 

Child support is not the only money at stake.  If Birkhead is the dad, he is the father of the sole heir to Smith's sizable fortune.

Here's the bottom line:  The California court eventually will order paternity testing, and we will all know, sooner rather than later, who's the daddy.

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