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By Michael Muskal, Times Staff Writer

5:27 PM PST, February 21, 2007

Anna Nicole Smith should be buried with her dead son, but not in the Bahamas, Larry Birkhead, one of the men who claims to be the father of the actress' infant daughter, said today.

Testifying in a Florida courtroom, Birkhead said Smith had miscarried a child he had fathered in February 2005 before Dannielynn, now 5 months old, was conceived. Birkhead claims to be the girl's father, as does Howard K. Stern, Smith's last companion, who also testified today.

Having Stern and Birkhead testify on the same day under oath was ready-made for some cable networks, which have been broadcasting the saga since Smith died on Feb. 8.

The confrontation pitted Stern, who when talking about Smith's drug usage and financial matters chose his words with the care of the lawyer he is, against Birkhead, who freely discussed his on-and-off relationship with the woman who patterned her life on Marilyn Monroe and wanted to be buried near her idol.

The question of paternity is pending in a California court, but Circuit Judge Larry Seidlin has repeatedly made it clear that he views the issue at the heart of what he is being asked to decide: Where to bury Smith, whose embalmed body is in a county morgue, continuing to decay.

Friends and relatives earlier today went to the Broward County medical examiner's office to view Smith's body as nature imposed its own timetable on the legal wrangling that has been going in the Fort Lauderdale courtroom since last week.

Stern has asked the court to allow Smith to be buried in the Bahamas with her son, Daniel, who died of an overdose at age 20 in September. Stern's petition is opposed by her mother, Virgie Arthur, who wants her daughter brought to Texas to be buried with her relatives. Arthur has testified she would also like Daniel's body brought to Texas, a request beyond the scope of the current hearing.

Seidlin insisted that he will rule on the burial question by Friday and asked all of the parties to present draft orders by Thursday evening.

Racing that deadline, all of the principals testified today in a long session that ran to almost 7 p.m. EST and dealt in part with whether anyone had tipped the media about the trip to the morgue or had gained financially from Smith's death.

During her time on the stand, Arthur painted a picture of a loving family, though she conceded that she had become estranged from her daughter a decade ago because of Smith's drug use. She also blamed Stern's influence for her daughter moving away from her Texas family.

Stern on Tuesday testified that he bought two double plots for Smith and paid with a check that he signed at Smith's request. Stern repeated that testimony today and acknowledged that he had signed the woman's checks several times. Attorneys representing Birkhead asked whether Stern knew about a forgery investigation into his actions in the Bahamas and Stern said no.

Stern also said he stands to earn a contingency fee, perhaps 6%, for his work on Smith's case involving a possible inheritance that could reach about $100 million or more. Smith married Texas oil tycoon J. Howard Marshall II in 1994 when he was 89 and she was 26. She had been fighting his family for a piece of the fortune since Marshall's death in 1995.

But it was the battle between the two putative fathers that riveted the courtroom. Birkhead, a 34-year-old unmarried photographer from Burbank, took the stand for almost an hour.

He described how he met Smith in 2004 and the couple eventually moved in together. By January 2005, Birkhead said, Smith was pregnant and told him he was the father. She miscarried a month later.

Their relationship continued, but there was a hiatus in November and December 2005, when she was involved with an unnamed man in South Carolina. Birkhead said that man had a vasectomy and wasn't claiming to be Dannielynn's father.

At least one other man has filed a paternity suit in California, and two others have said they could be the father, though they have not filed suit.

Birkhead said he and Smith reunited and by Valentine's Day 2006, Smith was again pregnant. She said the father was Birkhead, he testified.

Birkhead described Stern as a constant presence during the time, taking care of business and hoping for a romantic relationship with Smith.

"If you were the natural father, according to some arguments, you would be in a stronger position," Seidlin asked Birkhead. "Do you have a recommendation where I should put Anna Nicole Smith's body?"

"I do have an opinion. I would say since she always had a desire to be in California," Birkhead said, "that's where I would have preferred her to be.

In a perfect world, they would both be there," Birkhead said of Smith and her son.

"We don't have a perfect world," noted the judge, who handled the direct examination himself rather than allowing any of the competing, often acrimonious, attorneys to speak.

"I don't want to separate the mother from the child, but I don't want them in the Bahamas," Birkhead said.

Seidlin thanked Birkhead. "I appreciate your diplomacy and sensitivity," the judge said.

Then turning to the lawyers, who get to cross-examine Birkhead on Thursday, he added:

"I'm impressed by his testimony. He put a lot of meat on the bones in terms of presenting me a picture and filling in this canvas we are talking about."

Smith's mother testified this morning that her daughter wanted to be buried in California with the entertainment stars whose lives she sought to emulate.

Arthur attempted to bolster her parental right to pick the reality television star's final resting place by describing a loving relationship with her daughter and painting a picture of a close family.

But under cross-examination, Arthur said her estranged daughter also mentioned California as a final resting place. The conversation took place years ago but seemed to raise questions about Arthur's argument that Smith wanted to come home to Texas at the end of her life.

Under later cross-examination by Richard Millstein, an attorney appointed to represent the interests of Dannielynn, that Arthur discussed Smith's thoughts.

"In the last conversation you had with your daughter about her death wishes, meaning her final remains, was it that she wanted to be buried in California with the stars. Is that correct?"

"Yeah," Arthur replied. "Probably so. Yes."

Today was Arthur's turn to press her case. She testified that Smith came from a loving family and, under questioning from her attorney, explained how she had a close relationship with Smith and Daniel, who lived in Texas until he was about age 7.

Arthur occasionally broke into tears as her lawyer gently led her through a description of how illegal drugs came between her and her daughter.

Arthur also told of how she visited Daniel's grave on Jan. 22, the day that would have been his birthday. She said she was traveling with an entertainment reporter, whom she described as a friend.

She said she saw flowers and a card left by Birkhead on her grandson's grave. It was that act of kindness that became the basis of her bond with Birkhead. The pair shared a hug during the hearing.