Judge leaves Smith decision with baby guardian

updated 9:57 a.m. ET Feb. 23, 2007

FORT LAUDERDALE, Fla. - The guardian given control of Anna Nicole Smith’s remains plans to bury her in the Bahamas. But Smith’s mother is fighting on.

Richard Milstein, the court-appointed guardian of 5-month-old Dannielynn, announced the plans Thursday not long after a judge gave him control of Smith’s final resting place. He gave no timeframe.

However, Smith’s estranged mother, Virgie Arthur, wants her buried in her native Texas and will file an appeal.

Circuit Judge Larry Seidlin steered a surprise middle course in a dispute that became more urgent by the day when the medical examiner warned that Smith’s body was rapidly decomposing.

“Who is entitled to custody of the remains of Anna Nicole Smith?” Seidlin wrote in his ruling. “There can be only one proper and equitable answer to that question: Dannielynn, Anna Nicole Smith’s only child, heir and next of kin.”

The ruling came a full two weeks after Smith died at a Florida hotel at age 39 of still-undetermined causes.

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The judge, who choked up frequently and sometimes blubbered as he explained his decision, compromised and gave custody to Milstein, the guardian for Smith’s 5-month-old daughter, Dannielynn. He expressed hope that Smith would be buried alongside her son in the Bahamas.

“I want her to be buried with her son in the Bahamas. I want them to be together,” Seidlin said.

Seidlin teared up earlier Thursday when he abruptly cut short the proceedings to say he had made up his mind. In a sometimes rambling statement, he said “I’ve been trying to figure out, in a spiritual sense, how to bring it all together.”

Milstein works for the Miami office of the Akerman Senterfitt law firm. He has 30 years of experience and specializes in guardianship, probate and mediation, according to the firm’s Web site.

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The dispute over the burial was one of many surrounding Smith. Smith's boyfriend, attorney Howard K. Stern, is listed as Dannielynn’s father on the birth certificate, but Smith’s ex-boyfriend, Larry Birkhead, said the girl was his.

A California judge is handling the paternity case, but Birkhead’s attorneys plan to ask a Florida family court judge on Friday to order a sample of Dannielynn’s DNA to be collected in the Bahamas, or require the girl be brought here for DNA testing.

Stern had been hunched over a table with his hands folded as he awaited Seidlin’s ruling. He wiped away tears after the decision. Arthur covered her eyes.

The judge began Thursday’s hearing with a long diatribe, saying Smith’s relationships with her mother and Birkhead soured because of overuse of prescription drugs, and referred to Stern as “maybe an enabler.”

“We have Stern. Is he a bad guy or is he a fellow that has some form of a love for her? We don’t know,” Seidlin said. “Whatever relationship he had with her, he would be called maybe an enabler.”

Birkhead testified earlier that he attempted to curb the starlet’s drug use by urging her to seek treatment. When he visited the Bahamas home Smith and Stern shared last year, he said he became increasingly concerned about her medicine use.

“They kept bringing more and more drugs in the house,” Birkhead said, adding that Smith told him she needed the prescriptions to live. When he suggested Smith enter drug rehabilitation, he said she told him: “I’m not a drug addict and quit calling me one.”

Birkhead finally leaves Bahamas with daughter Two Anna Nicole Smith diaries sell for $59,750 Anna Nicole mocks herself in final role Birkhead says Howard K. Stern ‘a great help’

Testimony in the case has been peppered with details of Smith’s sexual liaisons and the deals allegedly being pursued to profit from the deaths of the starlet and her son.

Also Thursday, celebrity news Web site TMZ.com posted a video of Smith hugging and being kissed by a shirtless doctor, who is under investigation by the California state medical board for unspecified possible misconduct related to Smith. In the video from a nightclub, Stern and Birkhead watch as Smith and Dr. Sandeep Kapoor cuddle on a seat.

Messages left for Kapoor’s Los Angeles publicist Mark Saylor, on his cell phone and at his office, were not returned. A message was also left for Kapoor’s Los Angeles attorney, Ellyn Garofalo.

Smith married Texas oil tycoon J. Howard Marshall II in 1994 when he was 89 and she was 26 and she had been fighting his family over his estimated $500 million fortune since his death in 1995.

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