On Point - A New Take On Legal News

Judge's Anna Nicole Burial Ruling Not So "Wacko"?

Judge Larry Seidlin

For all his courtroom blubbering and histrionics, the Florida judge in the Anna Nicole Smith bodily remains battle may have crafted a ruling out of unprecedented circumstances that survives appellate review.

Broward County Circuit Court Judge Larry Seidlin -– dubbed a “Weepy Wacko” by the New York Post –- said the court-appointed advocate for Smith's infant daughter Dannielynn is entitled to determine the disposition of the remains. The advocate, Richard C. Milstein, plans to have Smith buried beside her son Daniel in the Bahamas.

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

While Dannielynn is “obviously incapable of making any choice with respect to the remains,” he said, the powers of a guardian ad litem in Florida

authorize Milstein to exercise Dannielynn's choice ... guided by the principle –- applicable to all such decisions –- that such exercise must reflect the best interests of Dannielynn.

Smith's estranged mother, Virgie Arthur, has taken the first step toward an appeal, filing an emergency petition asking Seidlin to stay his order. "The mother of Anna Nicole Smith is the only person to handle this burial. That's the law," her attorney, John O'Quinn, said on NBC's “Today” show.

UPDATE ... Virgie Arthur appealed Judge Seidlin's ruling and the 4th District Court of Appeal stayed the removal of Smith's body to the Bahamas. "The trial court departed from the essential requirements of the law in allowing a perfect stranger to decide where the Petitioner's daughter should be buried," Arthur's appellate petition says.

No Florida precedent addresses the exact issue of whether a guardian ad litem can decide the disposition of a body on behalf of a minor child. But Seidlin cited Leadingham v. Wallace, 691 So.2d 1162 (1997), which involved a dispute over the burial of a man whose immediate next-of-kin were four minor children.

“If the children are too young [to express an opinion], then a guardian could be appointed for them to act in their behalf,” the 4th District Court of Appeal –- which covers Broward County -– said.

The statement was dicta and Seidlin may have gone too far in saying,

Leadingham expressly recognizes that a guardian would be entitled to make the choice with respect to the disposition of a parent's remains on behalf of one too young to make it.

But Seidlin's decision as a whole is clearly reasoned and by no means “bizarre,” as O'Quinn described it. “I think at the end of the day, what really happened was justice was done,” former O.J. Simpson attorney Robert Shapiro told Fox News.

By Matthew Heller
2/24/07