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Behind the Anna
Nicole Smith circus lies an important truth about fathers’ rights. The long line
of opportunistic men who have lined up to be Smith’s baby’s dad since Smith’s
death has diverted attention from the case’s key fact: photographer Larry
Birkhead, Smith’s ex-boyfriend, has a legitimate claim to paternity. He has been
thwarted for several months by the same legal maneuvers which are often employed
to separate fathers from their children.
Long before
Smith died and her estate became an issue, Birkhead had filed for a DNA test to
determine the paternity of Smith's baby. In December he told the Associated
Press, "I am the father of Dannielynn and I think this is...a crime. I expect to
be reunited with my daughter." Birkhead says he and Smith had picked out baby
names, shopped for items for the baby, and had put their thumb prints in a baby
book as the child's parents. Nevertheless, the baby has lived at the home of
Smith and her attorney/boyfriend Howard K. Stern in the Bahamas since birth.
Rather than
allow the DNA test, Smith and Stern apparently decided to use a common ploy in
paternity cases—they stalled. If the DNA test is delayed long enough, by the
time biological paternity is established the judge deciding custody will likely
decide that Stern is the baby’s “psychological parent.”
Judges are
understandably reluctant to remove infants from the care of the only parent or
parents they've known, regardless of actual paternity. Stern is many things, but
he isn’t stupid. He knows that in child custody cases the baby is like the
football in a football game—whoever has possession is in control.
This tactic is
frequently employed in adoption cases. For example, in the highly-publicized
Huddleston case in Albuquerque, New Mexico, Mark Huddleston’s baby boy was
adopted out when he was three days old, but Huddleston didn't know the baby
existed until two months after his birth. A New Mexico court later found that
the private adoption agency hadn't properly notified Huddleston, and had needed
to get Huddleston’s permission before giving his son away.
Nonetheless, the stall tactic worked--by the time
the case was finally legally adjudicated, the boy had been with his adoptive
parents for over a year, and the judge ruled it was in the child’s best
interests to remain with them.
Time is running
out for Birkhead—Dannielynn is already over five months old, and once a baby
reaches six months it is quite possible to get judges to rule in favor of the
“psychological parent,” rather than the biological one. After a year it becomes
practically a slam dunk. If Stern is like most litigants in this situation, he
probably already has a mental health professional or two on tap to testify in
court as to his bond with the baby. He probably also has extensive video tapes
documenting his interactions with the girl.
The way to
combat these machinations is for family courts to order mandatory DNA testing of
all babies within 30 days of a putative father’s filing for paternity. When
these orders are flouted, as they often are, judges must be willing to give
their orders teeth by meting out punishments for contempt of court. Moreover,
most fathers do not have the legal resources to fight long legal battles—courts
must be proactive in resolving paternity claims quickly and correctly.
A father has the
right to parent his own child. The Smith case demonstrates how easily mothers
and their new partners are able to violate that right.
This column appeared in the Chicago
Sun-Times (3/10/07).
Jeffery
M. Leving is one of America's most prominent family law attorneys. He is the
author of the new HarperCollins book
Divorce Wars: A Field Guide to the Winning Tactics, Preemptive Strikes, and Top
Maneuvers When Divorce Gets Ugly. His website is
www.dadsrights.com.
Glenn
Sacks' columns on men's and fathers' issues have appeared in dozens of America's
largest newspapers. Glenn can be reached via his website at
www.GlennSacks.com or
via email at Glenn@GlennSacks.com.
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