Just recently a judge in New Zealand declared a 9-year-old girl a ward of the court so that he could change her name during her parents’ custody battle.  The Judge stated that by naming their child “Tulula does the Hula from Hawaii” the parents “made [sic] a fool of the child and set [sic] her up with a social disability and handicap, unnecessarily.”

In New Jersey, our highest court has said that in contested cases there is a strong presumption that the surname selected for a child by the custodial parent is consistent with the child’s best interest.  This presumption may be rebutted by evidence which shows that a different surname would better serve child’s best interest.  However, the noncustodial parent bears the burden of demonstrating, by a preponderance of the evidence, that the chosen surname is not in the best interests of child.

The New Jersey case centered around a father who went to the court in an attempt to have the child’s surname changed to match that of his own.  This happened after the fact as the parents of this child were not wed and initially, the father contested paternity of the child.  Historically, the societal norm has been that children bear the surname of their father.  “The practice of children assuming the father’s surname is traceable to the English medieval property system in which the husband controlled all marital property.  That preference continued in America, reflecting not only the long-standing English tradition but also the societal distinctions in the status of men and women.  Until the latter part of this century, the assumption that children would bear their father’s surnames was a matter of common understanding and the preference for paternal surnames was rarely challenged.  But the historical justifications that once supported a tradition in the law for children to bear paternal surnames have been overtaken by society’s recognition of full legal equality for women, an equality that is incompatible with continued recognition of a presumption that children must bear their father’s surname.  That presumption shall no longer apply in this State.”  Gubernat v. Deremer, 140 N.J. 120, 122-123 (1995).  In recent years, we have seen a growing change in this trend as more and more children are being given their mother’s surname or at times, a combination of both surnames.

New Jersey courts have not yet attempted to intervene in a parent’s personal selection of a name for their child as New Zealand courts have.  However, with the ever increasing trend of ‘unique’ names seen in our society,  who knows if we are headed in that direction?

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