Previously, I blogged on an individual’s right and the implications that may arise out of that right to name a child of their own. This issue arose again in the April 2, 2009 unpublished Appellate Division decision of A.K. v. D.O., A-4326-07T1.

Parents A.K. and D.O. were not married. Plaintiff A.K. filed a motion in 2007 seeking to establish D.O. as the biological father of child, H.R.K. As a result of that motion, the court not only established paternity but also ordered A.K. to amend H.R.K.’s birth certificate to reflect that the child’s father is D.P.O.

Thereafter, another motion was filed as to issues related to child support. D.P.O. also filed a motion seeking to change H.R.K.’s name. Oral argument was heard in October 2007, during which the court inquired as to the status of the birth certificate issue. A.K. stated that she felt that the Order would be insufficient for the Registrar of the birth certificate and also argued that her failure to comply was an “innocent oversight”.

The Court found A.K. in violation of litigant’s rights and assessed counsel fees against her. She did not file a motion for reconsideration or seek leave to file an interlocutory appeal. She retained new counsel who filed a motion seeking to vacate that part of the Order directing that she change the child’s name to H.R.O. In her motion, A.K. argued that the child’s name should be changed to reflect the name H.R.O-K. Defendant sought to change the child’s name altogether. The court found plaintiff in violation of litigant’s rights for failing to comply with the prior Order requiring her to change the child’s name on the birth certificate and provided that she was to complete the necessary forms to accomplish the name change and if she fails to, sanctions and/or counsel fees will be imposed. The appeal followed.

The Appellate Division reversed part of the trial court’s Order and affirmed part of the Order. In refusing to grant A.K.’s request to change the child’s name to H.R.O-K. the court failed to place its reason for denying this request on the record. The court only alleged that no one gave a reason why the prior Order should be changed. A.K.’s Certification filed in support of her application did provide reasons for her request and advised that defendant’s proposed name was only an expressed preference and that her other daughter, M.K., resides with her and the child in question and she felt it was in the child’s best interests to also have the same last name as M.K.

The Court in reaching its decision noted that defendant did not have any significant objection to the use of hyphenated surname. The Appellate Division exercised original jurisdiction to dispose of that issue for the sake of completeness and because the record provided ample basis for disposition without further fact-finding. The Division cited to Gubernat v. Deremer, 140 N.J. 120 (1995), which discusses the history of surnames and the adoption of regulations promulgated by the NJ Department of Health. Under N.J.A.C. 8:2-1.4(a)(1), “where either parent is unavailable, the choice of the child’s name(s) rests with the parent who has custody of the newborn child.”

“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 interest of the child….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 best interests of the child…The rebuttable character of the custodial-parent presumption serves two ends: it protects the rights of the custodial parent to make decisions in the best interests of the child; and it permits judicial intervention, on a sufficient showing by the non-custodial parent, when that decision does not reflect the best interests of the child.” Gubernat at 144-45.

In this case, the trial court did not apply the proper legal standard and as such, was reversed.

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