The substantial weight placed on every parents’ entitlement to have their child bear their surname is paramount in the law of New Jersey, and codified by statute. N.J.A.C. 8:2-1.4.

Where both parents cannot agree upon a surname for a child at the time of a child’s birth, both parents have the legal right to provide a surname for the child, with the child’s name being alphabetically hyphenated to reflect the name chosen by both parents. N.J.A.C. 8:2-1.4(a)(2). Deference will only be afforded to the parent with custody of the child in the event the other parent is “unavailable” at the time of the child’s birth. N.J.A.C. 8:2-1.4(a)(1).

But what happens where the “unavailable” parent has been unduly deprived of his right to attend the birth of his child due to the biological mother’s failure to notify the parent of the existence (or birth date) of his child?   This author suggests that where a parent was involuntarily unavailable at the time of his child’s birth as a proximate result of the biological mother’s wrongful actions, said parent must not be deemed “unavailable” for purposes of depriving that parent his right to name his child. Both equity and logic follow this proposition. Had the “unavailable” parent been appropriately advised by the biological mother as to his parental status (or properly notified as to the birth date of the child), he would have had the opportunity to attend his child’s birth and to provide his child with a surname to be hyphenated alphabetically with the surname chosen by the biological mother. Surely, the intent of the law was not to reward a mother’s deception by granting her sole authority to provide a surname for the child, while simultaneously punishing the unknowingly absent parent by denying him his legal right to have his child bear his name. 

The Supreme Court has established the law to be applied in situations where a noncustodial parent seeks to alter the name of his (or her) child that was chosen by the custodial parent. Gubernat v. Deremer, 140 N.J. 120 (1995). Gubernat establishes a presumption in favor of the surname elected by the custodial parent. However, such a presumption may be rebutted by evidence from the noncustodial parent that a different surname would be in the best interests of the child. Id. at 145. Factors to be considered are “the length of time that the child has used one surname, the identification of the child as a member or part of a familial unit, the potential anxiety, embarrassment or discomfort the child may experience if the child bears a surname different from the custodial parent, and any preferences the child might express, assuming the child possesses sufficient maturity to express a relevant preference.” Id. at 141 (citations omitted). However, the Gubernat Court was not presented with the circumstance addressed herein where a noncustodial parent was wrongfully deprived of his equal right to name the child at the time of the child’s birth. Accordingly, Gubernat provides no guidance as to the weight to be afforded such an unfortunate circumstance in the context of its legal analysis.

At least one court in Monmouth County has addressed the interplay between the law of Gubernat and a noncustodial parent’s involuntary absence from the birth of his child. O’Reilly v. Spencer, 2007 WL 283702 (N.J. Super. A.D.). Applying the law of Gubernat, the O’Reilly trial judge examined the above factors to determine whether the father demonstrated that a change in the child’s surname was in the child’s best interest. Concluding in the affirmative, the trial judge stressed that (1) the child was of a tender age so as not to be negatively impacted by the change in his name; (2) the child had young cousins with the father’s surname with whom the child would share a familial relationship; (3) there was no longer stigma attached to being born out of wedlock; and (4) the child’s age rendered him incapable of expressing any preference with regard to his name. Critically, the Judge further considered the father’s involuntary absence from the birth of his child when examining the father’s request in the context of Gubernat. Specifically, the Judge stressed that had the father known of the child’s birth date, he would have been able to exercise his right to attend the child’s birth and would, therefore, have had an automatic right to have the child bear his surname along with the mother’ surname pursuant to N.J.A.C. 8:2-1.4 Id. at 2.

The O’Reilly mother appealed the trial judge’s decision, claiming that the father’s involuntary absence from the child’s birth should not have been considered by the court when conducting the Gubernat analysis. Rejecting the mother’s argument, the Appellate Court confirmed that the trial judge did not err when considering the father’s involuntary absence from the child’s birth when determining the Gubernat best interest analysis.
Id. at 2.

As recognized by the O’Reilly trial judge, and as affirmed by the Appellate Division, it is simply inequitable for a court to penalize a parent for being “unavailable” at the time of a child’s birth if that parent would have attended the birth had he not been misled by the biological mother.

Taking all of the foregoing into consideration, this author opines that where a parent is involuntarily absent from his child’s birth due to the other parent’s wrongful actions, the absentee parent must not be deemed “unavailable” for purposes of the law, and must, therefore, be afforded the legal right to name the child as if he was present at the birth.

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