How does one change their name, or that of a child, in the State of New Jersey? Well, as set forth in the recently unpublished (not precedential) Appellate Division decision, Henao v. Tibbrine, there’s a law for that, which requires an applicant seeking a name change to file a verified Complaint in the Superior Court, with a sworn affidavit with certain required details. Interestingly, notice of the application must be published in a newspaper of “general circulation.”
When the hearing occurs, if the verified Complaint fulfills the statutorily specified requirements and there is no reasonable objection to the assumption of another name, than the name change will be permitted. The issue in Henao was whether the biological, non-custodial mother of two children could orally oppose the father’s name-change application at the hearing on the scheduled date. Notably, the law specific as to name changes does not require written opposition, which was the basis upon which the trial court relied in denying the mother’s oral opposition (rationalizing that the mother should have known to file an opposition in writing because she had previously been involved with motion practice before the court). However, court rules specific to the family part do require a written response 15 days prior to a scheduled hearing date.
The Appellate Division disagreed with the trial court, finding that there existed no evidence that the mother was informed of the need to oppose the application in writing. Interestingly, the Appellate Division in dicta expressed concern with allowing a name change application to proceed via a default judgment. Noting that a strong presumption exists that the name change is in the best interests of the children since the father was the custodial parent, the Appellate Division also noted that the presumption is rebuttable, especially where the child has used the non-custodial surname for a period of time, is comfortable with that name, is known by that name, and maintains contact with the non-custodial parent.
As a result, the matter was remanded to provide the mother with an opportunity to contest the name-change application, where it is incumbent upon her to establish that it is in the best interests of the children to keep her surname, or, interestingly, have a name that combines that of both parents (such as a hyphenated name).
While not the typical “family part” matter, this case was nonetheless interesting for its specific issue and the Appellate Division’s rationale and concern over the name-change proceedings.
The Court was also concerned that an action as significant as a name change would,be concluded by a default judgment. While under the law, there is a strong presumption that a name change requested by the custody parent is in the children’s best interests, the presumption can be rebutted. the Court noted that a child who has used the non-custodial surname for a period of time, is known to all by that surname, expresses comfort with the continuation of that surname, and maintains frequent contact with the non-custodial parent might be ill-served by the presumption that the assumption of the custodial surname would be in his or her best interests.
As such, the mother in this case was given the opportunity to contest the change of name and to demonstrate that it is in her children’s best interest to retain her name or assume some combination of her name and that of the father. There is a statute, N.J.S.A. 8:2-1.3(a)(2) that provides that where both parents have custody of the child, are both available, and disagree on the selection of a surname, “the child shall be given a hyphenated surname based on alphabetical order”).