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.