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
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.
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 Well, as set forth in the recently unpublished (not precedential) Appellate Division decision, Henao v. Tibbrine, there’s a law for that, which requires an applicant seeking a name change to file a verified Complaint in the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.
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…