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Attorney: Stern Has Custody Of Anna's Baby

As questions loom around the death of model Anna Nicole Smith, even more questions surround the infant daughter she left behind.

Smith was due in court at the end of this month in connection with a paternity suit filed by her ex-boyfriend, Larry Birkhead, who claimed to be the father of her infant daughter, Dannielynn. In interviews Stern said he was the father of the baby. A paternity test had yet to be performed.

James Neavitt, an attorney for Stern, told Julie Chen on The Early Show this morning that his client has custody of the 5-month-old. He said that although Smith and Stern were not legally married, he is the legal father of Dannielynn.

Photos: Anna Nicole Smith
"Right now he's the father. That's the presumption," Neavitt said. "He's on the birth certificate, Anna said he was the father. He said he was the father. The administrative process in the Bahamas says he's the father and until somebody comes in and tries to show different with evidence, he's the father."

The court set an emergency hearing for today to decide whether a court-ordered DNA sample can be taken from Smith's body to help determine her biological father.

"We got a call from Larry Birkhead's attorney notifying us to be in court today and then later that afternoon, maybe an hour later, she arranged a telephone call with the judge and we had a conference with the judge by phone," he said. "And he listened to both of our arguments and he wanted Ms. Opri (Birkhead's attorney) to bring in proof that there was a problem with DNA after a certain amount of time, that they couldn't take samples and use them on Anna Nicole and that it had to be done within a certain number of hours. And so he ordered us to be in court today at 8:30."

Neavitt said he is ready for that meeting.

"We have already briefed everything," he said. "First of all, there's a jurisdiction problem because Anna Nicole is now dead. They don't have a party. Secondly, they don't need the DNA of the mother to determine paternity between a father and a child. Third, they are taking DNA samples from 9/11 victims still and are able to determine things like that."

Neavitt said that he didn't believe Stern would stand to inherit any of Smith's fortune.

"I'm not a probate attorney but the reality is he wouldn't stand to get anything from her death," he said. "The only surviving beneficiary or heir of her estate would be Dannielynn."

Sources told People magazine that the infant was in the Bahamas when her mother died. She was in the care of the mother of Shane Gibson, a high-ranking Bahamian official and close friend of her mother.

Neavitt said that Stern is distraught with the news of Smith's death. "Well, he's very upset and he's distraught. It's very difficult to talk to him because he's dealing with all the emotion," he said.

Neavitt said Stern traveled to Hollywood, Fla., with Smith but that he was not in the hotel room when she collapsed. He was not there "at that moment," he said. "He's been with her since she went to the hospital."

It was Neavitt's understanding that Stern didn't join Smith until she died. "That's my understanding," he said.

It seems that authorities are not ruling out anything in Anna Nicole's death. Newspaper reports out today raised the question of murder.

"Nonsense. Murder by who?" Neavitt said in response to those reports. "This is nonsense."