In Z.A. v. R.V., Jr., an unpublished Appellate Division case, meaning not precedential, the Appellate Division ruled that the best interests of the child governs a surname change. This rationale falls squarely with the court’s previous cases that a child’s name change must be evaluated under the best interest standard. Emma v. Evans, 215 N.J. 197 (2013); Gubernat v. Deremer, 140 N.J. 120 (1995). You can read our prior blog post on Emma here: https://njfamilylaw.foxrothschild.com/?s=emma+v.+evans. What we can gather is litigation over a child’s name or surname continues to be a contested issue. The analysis is fact-sensitive and will vary from case to case. In this case, the mother was permitted to change her son’s last name to be hyphenated with both hers and the father’s last names.

Defendant-father appeals the trial court’s decision to change the parties’ son surname. Plaintiff-mother made an application to change the parties’ son surname from Defendant’s surname to the hyphenated surnames of both Plaintiff and Defendant.

Plaintiff and Defendant were not married, but were in a dating relationship since February 2012. Plaintiff became a foster parent to a four-day old boy in April 2012 and lived solely with Plaintiff until November 2012, when Defendant moved in with Plaintiff. When the parties’ adoption was finalized in December 2014 and they agreed that their son would take Defendant’s surname.

In September 2017, the parties separated. At this time, Plaintiff wished for the parties’ son to the hyphenated surnames of both her and Defendant, which Defendant opposed. The parties proceeded to a name change hearing after entering into an agreement regarding custody, parenting time, and child support. After conducting the hearing, the trial court granted Plaintiff’s application for the child’s name changed. Defendant requested a stay of the ruling pending appeal.

On appeal, Defendant argued that the trial court failed to apply the factors as set forth in Emma 215 N.J. 197 (2013) and the trial court abused its discretion by “focusing on whether the proposed name change would be contrary to the child’s best interests.” Z.A., at *3 Specifically, Defendant argued that the trial court impermissibly considered in factor three (3) consideration of Plaintiff’s potential anxiety, embarrassment or discomfort as opposed to a “child-centric” analysis. Z.A. at *6.

When a party makes a name change application, the burden is on the moving party to show by a preponderance of the evidence that the name change is in the best interest of the child. Emma, 215 N.J. at 222. The court in Emma listed several factors that bear on whether the name change is in the child’s best interests, some of which were originally articulated by Gubernat v. Deremer, 140 N.J. 120, 141-42 (1995):

  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 parental 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.

Emma, 215 N.J. at 223.

The Appellate Division found the trial court appropriately applied the above factors. As to Defendant’s argument that the trial court considered Plaintiff’s potential anxiety, embarrassment, or discomfort, the trial court only acknowledged that this factor could apply to parents. However, the trial court emphasized the need to focus on the child’s best interest and further found that Plaintiff’s testimony as to her potential anxiety, embarrassment, or discomfort not compelling. The trial court found the hyphenated name would promote “important ties to family heritage or ethnic heritage” to both sides of the child’s family. Therefore, the Appellate Division affirmed the granting of the name change application.

The primary focus of a name change application is what is in the best interests of the child. While all factors do not need to be present, a trial court still must consider all the factors and determine which are applicable to the facts of the case.

 


Sofia M. Ucles, Associate, Fox Rothschild LLP   Sofia M. Ucles is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Sofia at (973) 548.3349 or SUcles@foxrothschild.com

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.