by Deena Betze Esq.
Child’s name change: On August 12, 2013, the NJ Supreme Court ruled in Emma v. Evans on a request by a mother who, after the divorce, started hyphenating the parties’ two young children’s surname (with her birth name to which she returned following the divorce listed first, followed by the father’s surname) on their health and school records. The father objected and filed a motion to compel the mother to continue to use his surname as the children’s surname as had been the case during the marriage; in response, the mother sought court approval of her unilateral change of the children’s surnames to hyphenated names. The judge ruling on the mother’s motion followed a previous NJ Supreme Court ruling in Gubernat v. Deremer which had concluded “that in contested cases the surname selected by the custodial parent — the parent primarily charged with making custodial decisions in the child’s best interest — shall be presumed to be consistent with that child’s best interests, a presumption rebuttable by evidence that a different surname would better serve those interests. (Using such a presumption in favor of the custodial parent shifts the burden to the other parent of proving that the new name chosen by the custodial parent is not in the child’s best interest, giving the custodial parent a strong advantage at a name change hearing.) That motion judge’s ruling was reversed by the Appellate Division of the Superior Court of New Jersey (our intermediate appellate court), ruling that giving such a presumption in favor of the custodial parent is improper in cases where the children’s surname was chosen by the parties at the birth of each child and especially in cases where the parents share joint legal custody. (In Gubernat the Supreme Court in 1995 ruled in a case involving children of parents who never married, that the court in ruling on a name change motion should consider: “[T]he length of time that the child has used one surname, the identification of the child as a member or part of a family unit, the potential anxiety, embarrassment, or discomfort the child might 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.”) In Emma v. Evans our Supreme Court ruled that such a presumption was improper, that the standard is what is in the children’s best interest without either parent having a leg up on the other in the decision. The Court stated: “ the party seeking to alter the status quo from the surname jointly given to the children at birth must bear the burden of proving by a preponderance of the evidence that the change in the children’s surname is in their best interests.” The factors to be considered by a judge ruling on a name change motion are:
- The length of time the child has used his or her given surname;
- Identification of the child with a particular family unit;
- Potential anxiety, embarrassment, or discomfort that may result from having a different surname from that of the custodial parent;
- The child’s preference if the child is mature enough to express a preference;
- Parental misconduct or neglect, such as failure to provide support or maintain contact with the child;
- Degree of community respect, or lack thereof, associated with either paternal or maternal name;
- Improper motivation on the part of the parent seeking the name change;
- Whether the mother has changed or intends to change her name upon remarriage;
- Whether the child has a strong relationship with any siblings with different names;
- Whether the surname has important ties to family heritage or ethnic identity;
- The effect of a name change on the relationship between the child and each parent.