What’s in a name? Litigation over the surnames of the children of unmarried couples is not unusual, and our Supreme Court has addressed these issues a few times over the last two decades.  In those cases, a presumption in favor of the parent of primary residence was established, though subsequent to that, hyphenated names became more of the norm in the resolution of these disputes.  Does that same presumption in favor of the parent of primary residence (PPR) apply to divorced parties when the PPR wants to change a child’s name, post-divorce?

Well, we found out today with the Supreme Court’s decision in the case of Emma v. Evans decided on August 12, 2013.  And the answer is no.  Rather, because of the magnitude of the decision to change a child’s name, the court found that the parties stand on equal footing and a best interests analysis must apply.

In this case, within months of the divorce, the mother began changing the two children’s name on school and medical records.  The ex-husband went to court to stop this and the ex-wife cross moved for a name change.  The trial court granted the motion for the name change, relying on the prior case law.  The Appellate Division reversed.

Today, the Supreme Court court noted that with modern life giving rise to so many varied relationship settings into which a child may be born, the prior case law’s (Gubernat v. Deremer)  interest in gender neutrality is not promoted by broad continuation of a presumption in favor of a parent of a primary residence, or custodial parent, when applying the best-interests-of-the-child standard in name-change disputes that arise after a child has been given a surname jointly by his or her parents. The Court held that in  disputes over whether a child’s agreed-upon surname should be changed, it is not just to provide a presumption to a custodial parent’s choice of a new name. Moreover, the presumption in such renaming disputes is rejected irrespective of whether or not the parents were married at the time of the child’s birth.

Moreover, the Court noted that it was the parent seeking to change the children’s names who had the burden of proving that the name change is in the children’s best interests.  The Supreme Court even gave factors that should be considered, some old and some new, as follows:

  1.          The length of time the child has used his or her given surname.
  2.          Identification of the child with a particular family unit.
  3.          Potential anxiety, embarrassment, or discomfort that may result from having a different surname from that of the custodial parent.
  4.          The child’s preference if the child is mature enough to express a preference.
  5.          Parental misconduct or neglect, such as failure to provide support or maintain contact with the child.
  6.          Degree of community respect, or lack thereof, associated with either paternal or maternal name.
  7.          Improper motivation on the part of the parent seeking the name change.
  8.          Whether the mother has changed or intends to change her name upon remarriage.
  9.          Whether the child has a strong relationship with any siblings with different names.
  10.          Whether the surname has important ties to family heritage or ethnic identity.
  11.          The effect of a name change on the relationship between the child and each parent.

This well reasoned decision seems like the natural progression as to the issue of names, recognizing that the need to protect from the paternalistic ills that formed the basis of Gubernat had to be tempered against modern realities.

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.