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What’s In A Child’s Name?

By

Charles F. Vuotto, Jr., Esq, and Lisa Steirman Harvey, Esq.

It is the intention of the authors to provide a general primer for both attorney and client concerning the law governing a parent’s request to change a child’s name in New Jersey.  This article will address the history and current status of the law with regard to requests for a child’s name change, and will conclude with an examination of the legal procedure required to make an application for such relief.   

LEGAL ANALYSIS

The Subjective Nature of the Best Interest Inquiry  

Up until the Supreme Court established precedent in 1995 with the seminal case of Gubernat v. Deremer, 140 N.J. 120 (1995)(detailed below), the law governing requests for a child’s name change was cloudy at best.  Although the lower courts were in agreement that “the best interests” of the child should be the critical factor in determining whether a request for a name change should be granted, they were not in agreement as to what constituted the “best interests” of a child.  The “best interests” inquiry required the courts to immerse themselves in the particular dynamics of each family in order to determine the child’s “best interests” on every application.  Unfortunately, the subjective nature of such an inquiry led to inconsistency in the law, ultimately resulting in polarized legal positions among the lower courts. 

Despite the inconsistency in the law described above, a few trends can be extrapolated from the overall confusion.  For the most part, the earlier decisions concerning a child’s name change were based on deference to a father’s right to have his child bear his surname. Sobel v. Sobel, 46 N.J. Super. 284, 287  (Ch. Div. 1957) (in the absence of “extenuating circumstances”, a father has the “right to expect his kin to bear his name”);  W. v. H., 103 N.J. Super. 24, 26 (Ch. Div. 1968) (noting “the father’s right to have his progeny bear his name”);  Application of Lone by Dec, 134 N.J. Super. 213, 217-18  (Law Div. 1975) (denying custodial mother’s application to change her child’s surname to that of the child’s step-father since there were no “extenuating circumstances” that would  overcome the presumption in favor of the biological father’s right to have his child bear his name).  Added to the mix of these earlier cases was at least one case giving deference not to the father’s right to have his child bear his name, but rather to the child’s right to determine his/her own name, regardless of whether the child had reached the age of majority. Bruguier v. Bruguier, 12 N.J. Super. 350 (Ch. Div. 1951) (child in high school permitted to change her name based on her individual right to determine her own surname). 

Beginning in the eighties, more courts began to recognize equality of gender when applying the best interests inquiry, which often resulted in deference being afforded to the mother, who was usually the custodial parent. Application of Rossell by Yacono, 196N.J. Super. 109, 113-116 (Law Div. 1984) (rejecting any general  presumption in favor of a father’s right to have his child bear his name, and holding that the mother, custodial parent, was entitled to have her child’s name changed to her maiden name where child was less than two years old, had lived almost exclusively with the mother, had no current identification with the existing surname, and the father’s interest in the child had been minimal at best);  M.D. v. A.S.L., 275 N.J. Super. 530, 535-36 (Ch. Div. 1994) (where parties never married, the best interests of the child required that the child bear the mother’s surname since the child lived primarily with the mother and should, therefore, share the same last name as his mother and his three half-siblings in order to create a sense of “normalcy to the life” of the child)[1].  In one of the more recent pre-Gubernat  cases, the court decided to part from all previous case law by determining that the appropriate approach was to have the child share both surnames rather than pick one surname over the other.  K.K. v. G.,  219 N.J. Super. 334 (Ch. Div. 1987) (in action brought by mother, as custodial parent, to change the child’s name to that of the step-father, the court determined that the best interests of the child would be served by allowing the child to add the step-father’s surname to the child’s present surname); see also In re Fisher, 204 N.J. Super. 75 (Law Div. 1985) (where non-custodial parent objected to the custodial parent’s request for the child to bear the non-custodial parent’s name, the best interests of the child would not be served by having the child’s name changed over the objection of the non-custodial parent).

Of course, the lower courts have always agreed that a request for a name change made by a custodial parent would be granted in situations “wherein the non-custodial parent has exhibited behavior deleterious to the best interests of the child”.  M.D.,275 N.J. 530 (Ch. Div. 1994); W. v. H., 103 N.J. Super. 24 (Ch. Div. 1968) (father who had sexual relations with his children caused physical and psychological harm to children warranting  a change of the children’s name to the mother’s maiden name); Sobel v. Sobel, 46 N.J. Super. 284, 287  (Ch. Div. 1957) (a non-custodial parent may not object to a change in a child’s surname where he/she has abandoned the child, willfully failed to pay support, or has generally showed indifference to the child’s welfare). 

 

Supreme Court Decision of Gubernat v. Deremer Mandates a Presumption in Favor of the Custodial Parent

            In 1995, the Supreme Court responded to the discrepancy in the law caused by the subjective nature of the ‘best interests’ inquiry.  The response was to ‘simplify’ the best interests inquiry by essentially taking the non-custodial parent out of the equation, or, at least, out of the prima facie equation.

            In Gubernat, a father brought an application to have his child bear his surname, despite the fact that he had previously protested paternity of the child and the mother had given the child her surname at the child’s birth.  Id. at 122.  When the child was approximately seven months old, the father conceded paternity and brought an application for joint custody, increased visitation, and a change in the child’s surname.  Id.  The trial court granted the father joint custody and increased visitation, but retained the mother’s status as the primary custodial parent.  Id.  Recognizing “the father’s interest in maintaining his relationship with his child for their mutual benefit”, the trial court granted the father’s request to have the child bear his surname.  Id.  The decision was affirmed on the mother’s appeal. 

            Granting certification, the Supreme Court began by providing a thorough analysis of the origin and history of the surname. Id. at 126-140.  Turning to the current status of the law, the Court recognized the “best interests” inquiry currently being employed by the lower courts, explaining that the courts look into such factors as:

1.      the length of time that het child has used one surname,

2.      the identification of the child as a member or part of a family unit,

3.      the potential anxiety, embarrassment, or discomfort the child might experience if the child bears a different surname from the custodial parent, and

4.      any preferences the child might express, assuming the child possesses sufficient maturity to express a relevant preference.

     Id. at 141 (citations omitted). 

However, the Court was quick to note that the “subjective” and “speculative” nature of the ‘best interests’ test had led to “inconsistent resolutions of child-naming controversies” among the lower courts.  Id. at 142 (quoting Laura Anne Foggan, Note,Parents’ Selection of Children’s Surnames, 51 Geo. Wash. L. Rev. 583, 595-96 (1983)). 

            In order to rectify the inconsistent decisions arising from the subjective nature of the “best interests” inquiry, the Supreme Court determined that the law must provide a “presumption that the parent who exercises physical custody or sole legal custody should determine the surname of the child…”[2]  Id.at 145.  The Court explained that by mandating a presumption in favor of the custodial parent’s choice of surname for a child, the Court was not abandoning the ‘best interests’ inquiry, but was rather recognizing a parental right that was “firmly grounded in the judicial and legislative recognition that the custodial parent will act in the best interests of the child.[3]”  Id. at 144.  Although “adopt[ing] a strong presumption in favor of the surname chosen by the custodial parent”, the Court noted that the presumption could be rebutted if the non-custodial parent could demonstrate “by a preponderance of the evidence that despite the presumption favoring the custodial parent’s choice of name, the chosen surname is not in the best interests of the child[4].”  Id. at 144-45.  Specifically, the Gubernat Supreme Court declared:

The presumption that the parent who exercises physical custody or sole legal custody should determine the surname of the child is firmly grounded in the judicial and legislative recognition that the custodial parent will act in the best interests of the child.   Accordingly, we adopt a strong presumption in favor of the surname chosen by the custodial parent.

***

The non-custodial parent bears the burden of demonstrating by a preponderance of the evidence that despite the presumption favoring the custodial parent’s choice of name, the chosen surname is not in the interests of the child.  Courts should examine scrupulously all factors relevant to the best interests of the child and should avoid giving weight to any interests unsupported by evidence or rooted in impermissible gender preferences.  The rebuttable character of the custodial-parent presumption serves two ends:  it protects the right of the custodial parent to make decisions in the best interests of the child; and it permits judicial intervention, on sufficient showing by the non-custodial parent, when that decision does not reflect the best interests of the child.

Id. at 144-146 (citations omitted).

            Applying the law above to the facts of the case, the Gubernat Court refuted any presumption in favor of the father, noting that “no empirical or circumstantial evidence has been produced to suggest that the retention of the paternal surname is essential to maintenance of the father-child relationship, and we suggest that such an assumption is predicated on forsaken, gender-based notions of parenthood.”  Id. at 147.  Emphasizing that the sole presumption must be the “custodial parent presumption”, the Court determined that the father, although clearly a loving and supporting parent, had failed to meet his “burden of demonstrating by a preponderance of the evidence that a change in the surname is in the child’s best interests.”  Id. at 146. 

The law of Gubernat is clear:  (1) There is a “strong presumption in favor of the surname chosen by the custodial parent”, which is based on the “judicial and legislative recognition that the custodial parent will act in the best interest of the child”; and (2) The presumption in favor of the custodial parent may be rebutted by the non-custodial parent, but only if the non-custodial parent meets his or her burden of “demonstrating by a preponderance of the evidence that despite the presumption favoring the custodial parent’s choice of name, the chosen surname is not in the best interests of the child.”  Id. at 144-5. 

The law post-Gubernat:  Deference to the Custodial Parent

            The Gubernat decision has certainly met its objective, as the mandatory presumption in favor of the custodial parent has created more consistency, and even “predictability”, among the New Jersey courts with regard to requests for a child’s name change.  Gubernat, 140 N.J. at 142; Staradumsky v. Romanowski, 300 N.J. Super. 618, 621 (App. Div. 1997) (granting custodial mother’s application to change the first and last name of her three year old child over the objection of the non-custodial father, and declaring, “The same presumption that the name the custodial parent selects is the one that is in the child’s best interests applies whether it is the first name or surname.”); J.S. v. D.M., 285 N.J. Super. 498, 500 (App. Div. 1995) (denying the non-custodial father’s request to change his child’s surname since the father had failed to overcome the “strong presumption that the surname elected by a custodial parent is in the best interest of a child…”).  In 2004, the Supreme Court solidified the law of Gubernat further by reversing and remanding to the trial court due to the failure of both the trial court and Appellate Division to apply the “presumption in favor of the primary caretaker’s choice of surname” and inappropriately placing the burden on the custodial parent to demonstrate that her request for a name change was in the child’s best interest”.   Ronan v. Adely, 182 N.J. 103, 111 (2004).  

As recently as this year, the courts have continued to apply Gubernat, routinely finding in favor of the custodial parent’s choice of surname.  See the unpublished decision of A.K. v. D.O., 2009 WL 857387 (N.J. Super. A.D.) (relying on Gubernat’s presumption in favor of the custodial parent’s choice of surname  and granting custodial mother’s request to change the child’s surname to reflect the names of both parents).  

The current status of the law concerning a name change for a child is axiomatic.  The custodial parent, who enjoys a “strong presumption” in favor or his/her selection of surname, has great advantage over the non-custodial parent, who must fight an uphill battle to overcome the presumption through a preponderance of the evidence demonstrating why, despite the strong presumption in favor of the custodial parent, the surname requested (or chosen) by the custodial parent is contrary to the child’s best interests. Gubernat, 140 N.J. at 144-46.

In order to increase chances of success, the non-custodial parent seeking (or objecting to) a name change for his/her child must, at a bare minimum, be able to provide fully supported evidence demonstrating why the custodial parent’s choice of surname is contrary to their child’s best interests.  In gathering such evidence, the following factors concerning the child’s best interests are critical:

(1)   Relationship of the non-custodial parent to the child

(2)   Whether the child currently shares his name with the members of his primary household

(3)   Whether the child shares his existing surname with any siblings

(4)   How long the child has had his existing surname

(5)   The geographical proximity between the non-custodial parent and the child

(6)   The age of the child

(7)   Any trauma, embarrassment, confusion or anxiety caused by a sudden change in the child’s existing name

(8)   The stability of the custodial home

(9)   In an application to change the child’s name to a step-parent’s surname, the relationship of the child to the step-parent and the permanency of the relationship

(10)                        The support (both financial and emotional) that the non-custodial parent has provided to the child

(11)                       The preference of the child if of sufficient age and maturity.

The above factors are only a sampling of factors that are essential when attempting to provide the preponderance of the evidence needed for a non-custodial parent to overcome the presumption in favor of a custodial parent’s choice of a child’s name.  Of course, despite the benefit of the presumption in his or her favor, when representing a custodial client, the same factors should be thoroughly addressed. 

PROCEDURE

            The statutory authority governing applications for a change of name is found at N.J.S.A. 2A:52-1, which provides that every application for a name change be instituted by a complaint and accompanying certification.  Specifically, the law provides:

Any person may institute an action in Superior Court, for authority to assume another name. The complaint for a change of name shall be accompanied by a sworn affidavit stating the applicant’s name, date of birth, social security number, whether or not the applicant has ever been convicted of a crime, and whether any criminal charges are pending against him and, if such convictions or pending charges exist, shall provide such details in connection therewith sufficient to readily identify the matter referred to. The sworn affidavit shall also recite that the action for a change of name is not being instituted for purposes of avoiding or obstructing criminal prosecution or for avoiding creditors or perpetrating a criminal or civil fraud. If criminal charges are pending, the applicant shall serve a copy of the complaint and affidavit upon any State or county prosecuting authority responsible for the prosecution of any pending charges. A person commits a crime of the fourth degree if he knowingly gives or causes to be given false information under this section.

N.J.S.A. 2A:52-1; see also Rule 4:72-1(a).

            With specific regard to applications for a minor’s name change, the New Jersey Court Rules provide:

If the complaint seeks a name change for a minor, the complaint shall state whether the child or any party in interest in the name change application is the subject of a family action pending or concluded within the three years preceding the filing of the complaint. In such event, the action shall be transferred to the Family Part in the vicinage in which the family action is pending or was concluded. If neither the child nor any party in interest is or has been the subject of such action, a certificationto that effect shall be appended to the complaint.

Rule 4:72-1(b).

            The law referenced above requires a parent to commence a separate action, by means of a complaint and accompanying affidavit, requesting a name change for a minor child.  N.J.S.A. 2A:52-1, Rule 4:72-1(a).  The complaint must state whether “any [party in interest in the name change application is the subject of any pending family action pending or concluded within the three years preceding the filing of the complaint.”  Rule 4:72-1(b).  If a party has been the subject of such an action, the matter must be transferred to the “Family Part in the vicinage in which the family action is pending or was concluded.”[5]  Id.   The trial courts of New Jersey have enforced these procedural regulations by holding that a parent may not seek to change a child’s surname by filing a motion in the divorce action or as part of a domestic violence proceeding, but must rather file the appropriate complaint pursuant to Rule 2A:52-1, and Rule 4:72-1.  Viola v. Fundrella, 241 N.J. Super. 304, 309 (Ch. Div. 1990); Basile v. Basile,255 N.J. Super. 181 (Ch. Div. 1992).

            When representing a client in a divorce action who would like to seek a change of his or her child’s surname, the above law directs that a separate complaint be filed with the court that discloses the pending family action.  If conducive to the circumstances of a particular case, the attorney may request that the complaint be joined with the pending divorce action in the interest of judicial economy.

CONCLUSION

            The authors are hopeful that this article has served to provide the reader with a better understanding of the law concerning an application to change a child’s name and has, consequently, enabled both attorney and client to more effectively present or defend such applications to the court.

 

NJ divorce lawyer, Charles F. Vuotto, Jr., Esq. is a partner in the Matawan law firm of Tonneman, Vuotto & Enis, LLC.  Mr. Vuotto has been certified by the Supreme Court of the State of New Jersey as a Matrimonial Law Attorney, is the Chair of the Family Law Section of the New Jersey State Bar Association, is Co-Managing Editor of the New Jersey Family Lawyer, is the Co-Chair of the Matrimonial Section of the New Jersey Association for Justice and has been selected by his peers for inclusion in the 2009 edition of the Best Lawyers of America ® in the area of Family Law.  Lisa Steirman Harvey, Esq. is an associate with the firm.  Her practice is exclusive to the area of Matrimonial/Family Law, including both trial level and appellate work, with an emphasis on legal research and writing. Ms. Harvey attended Rutgers Law School, where she graduated with honors.  She is a member of the New Jersey State Bar Association and Monmouth County Bar Association, as well as Phi Beta Kappa.


 


[1] Although deciding that the child would bear the mother’s surname, the trial court directed that if the husband so desired, the child’s middle name would be changed to include the father’s surname.  M.D., 275 N.J. Super. at 536.  Such a position concerning the child’s middle name has been taken by several other courts.  Staradumsky v. Romanowski, 300 N.J. Super. 618, 621 (App. Div. 1997).

[2] The presumption in favor of the custodial parent’s choice of name, as well as the ‘best interests’ inquiry, applies with equal force to married and unmarried parents.  Ronan v. Adely, 182 N.J. 103, 108 (2004)

[3] Although not examined in this article, the authors raise the issue of whether granting such deference to the custodial parent (a deference that has spread to other areas such as health, religion, and education)  erodes  the concept of joint legal custody, potentially rendering the concept– and the co-parenting rights that go along with it- meaningless.

[4] The Gubernat Court noted that the State Department of Health had promulgated regulations that granted deference to the custodial parent’s right to select a name for his or her child at birth.  Id. at 144 (citing N.J.A.C. 8:2-1.3(a) 1,  which provides that if either parent is unavailable, the choice of name to be given to a child at birth  is to be made by the custodial parent).

[5]In addition, Rule 4:72-3 governs Notice of Application, providing: “The court by order shall fix a date for hearing not less than 30 days after the date of the order. Notice of application shall then be published in a newspaper of general circulation in the county of plaintiff’s residence once, at least two weeks preceding the date of the hearing.”  With specific regard to name changes of a minor, the Rule directs, “The court shall also require, in the case of a minor plaintiff, that notice be served by registered or certified mail, return receipt requested, upon a non-party parent at that parent’s last known address”.  Rule 4:72-3.

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