Florida Appeals Court Weighs Challenge in Anna Nicole Smith Body and Burial Battle

A Florida appeals court was weighing a challenge over what to do with Anna Nicole Smith's body on Tuesday, meaning the former Playboy Playmate's burial will be delayed further.

Attorneys in the case had until 2 p.m. EST Tuesday to respond to a request by Smith's estranged mother, Virgie Arthur, to overturn a trial judge's decision giving control of Smith's body to the court-appointed attorney for the centerfold's infant daughter.

That attorney, Richard Milstein, decided last week that Smith should be buried next to her son in the Bahamas.

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The fate of Smith's body was in the hands of three appeals court judges Tuesday; Milstein and the attorney for Smith's boyfriend, Howard K. Stern, did file a response to the petition by the 2 p.m. deadline.

Stern's lawyer June Hoffman held a press conference Tuesday.

"She loved this boy, he was the world to her," Hoffman told reporters outside the courthouse, referring to Smith's son Daniel. "We're just trying everything we can do to return her home."

On Monday, the Florida 4th District Court of Appeal agreed to Arthur's request to issue a stay in the body custody battle. Arthur has been seeking to bury her daughter in her native Texas.

The appeal means that Smith's remains cannot yet be moved to the Bahamas for burial.

Milstein said over the weekend that he was working on funeral details for the former reality TV star, who died in a Florida hotel Feb. 8 at age 39. A medical examiner has yet to determine Smith's cause of death. Toxicology results could take up to two more weeks.

A weeklong hearing in Broward County, Fla., yielded numerous witness testimonies suggesting Smith, who had made her home in the Bahamas in recent months, wanted to be laid to rest there, next to her late son Daniel.

Smith's son's grave, an unmarked plot at the Lakeview Memorial Gardens in Nassau, has become a popular tourist spot — as is "Horizons," the gated, waterfront home in the capital's Winton neighborhood where Smith lived with Stern.

Arthur claimed in the petition that Circuit Judge Larry Seidlin had no authority under Florida law to grant custody to the advocate, and that the mother is the "legally recognized person" to take Smith's remains.

In an earlier filing, Milstein said that "every witness including Arthur testified that Anna Nicole Smith expressed an interest in being buried in either California or the Bahamas" and as "a matter of undisputable law, Dannielynn is her mother's 'next of kin'; Arthur is not."

Arthur's lawyer, Roberta G. Mandel, said her client was willing to take the fight to the state Supreme Court.

"This mother is a mother who deserves the right to bury her child," Mandel said.

Mandel wrote in the appeal that Seidlin's ruling was an inconvenience because the mother would need a passport and airline tickets to visit Smith's grave.

Outside court, Mandel said Arthur was willing to take the fight to the state Supreme Court, if necessary.

On Monday Seidlin rejected Arthur's request to reconsider last week's ruling, saying he wanted to preserve Smith's dignity by having the funeral as soon as possible.

Telephone messages left for Mandel and Milstein were not returned after the appeals court decision. Seidlin declined to comment.

Stern attorney Ron Rale said his client was continuing the fight.

"We've obviously been preparing just in case," Rale said. "But this is just sad that Virgie is pursuing her appeal."

On Monday, in Nassau, Bahamas, a Bahamian Supreme Court battle over who should get custody of Smith's 5-month-old daughter ended, with the hearing adjourned until March 16.

Smith's ex-boyfriend and estranged mother went to the Bahamas Supreme Court in Nassau to make their cases on why they each believe they should be awarded custody of the late model's baby, Dannielynn.

"I hope to get to see her and have her soon," Larry Birkhead told reporters outside the Supreme Court building.

Arthur arrived after Birkhead in a white limousine. Asked why Arthur deserved custody, her attorney Deborah Rose said simply: "She's the grandmother."

Smith's most recent live-in boyfriend, Stern — who is listed on the birth certificate as the baby's father — is also seeking custody of the child, who could inherit her mother's millions.

Birkhead wants a Fort Lauderdale court to enforce a California judge's orders so he can get DNA samples from Smith's body and the baby.

Birkhead attorney Debra Opri indicated after Monday's hearing that DNA tests were expected, but she would not elaborate.

In an interview aired Tuesday on NBC's "Today" show, Birkhead talked about his plans and hopes for the outcome.

"I see just me and my daughter. Me taking her to school and just playing," Birkhead sad. "My daughter has become my life. That's what I am fighting for. What kind of dad would I be if I didn't fight for my daughter?"

Meanwhile, news surfaced that settlement negotiations have begun.

TMZ.com reported Monday that Stern and Birkhead may be heading for a settlement, with lawyers for both parties negotiating. The arrangement could give Birkhead custody of the baby with Stern remaining in Dannielynn's life as a trustee for the millions she stands to inherit.

Legal experts predict Birkhead will have a tough time convincing the justices of his case as Stern is listed on the birth certificate as Dannielynn's dad.

"There is a very strong legal presumption that what is stated in that document is accurate," said Thomas A. E. Evans, a prominent Bahamas attorney.

Birkhead, a Los Angeles-based photographer, also must contend with a competing claim from Arthur, who has said she could provide a more stable home for Dannielynn than Stern and should therefore be awarded custody of the girl — who could inherit a fortune.

Opri would not confirm the settlement talks, according to TMZ.com, but she did note that DNA testing and the establishment of paternity would be required for a settlement to occur.

Dannielynn Smith, who was born in the Bahamas on Sept. 7, is staying at a gated, waterfront mansion in Nassau where Smith lived with Stern until the former Playboy Playmate died of unknown causes in Florida on Feb. 8.

Bahamas Supreme Court Justice Stephen Isaacs dealt only with procedural matters at a private hearing Monday to determine Dannielynn's guardianship, said Wayne Munroe, an attorney for Smith's estate there.

Isaacs scheduled the next hearing for March between Arthur and Stern, who is listed as the father on the birth certificate. The judge has barred Stern from taking the girl out of the Bahamas until a custody ruling.

Evans said that there is no specific provision in Bahamian law, which is guided by local statutes and English Common Law, for a man to claim paternity based on DNA. But the court could determine any of those seeking to be the guardian of Dannielynn — or even another party, including the country's Department of Social Services — should have custody depending on the best interests of the child, he said.

Dannielynn could inherit part of the fortune of Texas oil tycoon J. Howard Marshall II, whom Smith married in 1994 when he was 89 and she was 26. She had been fighting his family over his estimated $500 million fortune since his death in 1995.

A quick decision in the paternity case is not expected.

"They are not known for impromptu rulings," said Sidney Collie, an attorney and former Bahamian senator, about the former British colony's Supreme Court judges. "They are known for writing long, involved opinions."

In another Nassau courtroom Monday, a separate hearing was scheduled in a dispute over the home in Winton. Ben Thompson, a South Carolina developer who briefly dated Smith, says he advanced her money for the $900,000 house but she did not honor an agreement to pay the mortgage. She had claimed the house was a gift.

Godfrey Pinder, the attorney for Thompson, said Stern's refusal to leave the house prompted the action.

"He has no right being there," Pinder said of Stern. "He's an interloper."

"He has no business being there and he knows it," Pinder told FOX News.

A TMZ report said Tuesday that Thompson, who claims to own the house, plans to put the house on the market for $10 million.

Taxis have ferried a seemingly endless stream of gawkers to the house, where Stern has been sequestered with Dannielynn since he returned from Florida on Saturday.

The Associated Press contributed to this report.

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