Divorce FAQ's
1. I really hate my husband. He was the biggest cheater on earth, and he has ruined my life. Can I change our son’s last name in the divorce proceedings?
Name change litigation is a growing area of family law practice. Each and every year there are more and more cases that are reported on the name change of a child. In a divorce case, the wife of course may resume her maiden or former married name. An interesting issue is whether the custodial mother can have a child’s last name changed to her maiden name? The answer to this question is decided on a case by case basis by a family court. I will provide a synopsis of the most relevant family law cases on this point. However, there is no black or white answer to this question. As with everything else in the family law arena, the answer to this question is in the “grey area.” Nothing is ever certain in the family law “battlefield.” The only certainty in a divorce is that there will be legal fees, and it will be a brutal experience.
2. What are some of the important cases that have involved name change applications for the child?
The first New Jersey case that dealt with a name change application for a child was the matter of Application of Rossell Yacono, 196 N.J. Super. 109 (Law Div. 1984). In this case the mother sought a judgment to change her son’s surname to her maiden name. The court held that the right of the mother to have her child bear her name must be recognized as equal to that of the father. The court also ruled that the mother was entitled to have child’s surname changed to her maiden name.
This matter was again addressed in the case of In re Fisher, 204 N.J. Super. 75 (Law Div. 1985). Here, the natural mother of the minor child born out-of-wedlock brought an action to change the child’s surname from that of the natural father. The court held that in view of the natural father’s vigorous opposition and rejection of any personal relationship with the child, the child’s best interests would not be advanced by the change in his surname sought by the natural mother.
In the case of K.K. v. G, 219 N.J. Super 334 (Ch. Div. 1987), the mother of a child born out of wedlock sought to change the daughter’s name to that of her husband. The court held that it had the power to grant the relief sought by the plaintiff-mother, and on the facts of the case, did so.
In the case of M.D. v. A.S.L, 275 N.J. Super. 530 (Ch. Div. 1994), the court held that upon a balancing of the parties’ position that the illegitimate child bear each of their surnames the child would bear the mother’s surname and, if the father wished, his surname in the child’s middle name.
3. What is the procedure for a parent to file an application to change the child’s surname?
A name change application can only be made via a formal complaint pursuant to N.J.S.A. 2A:52-1 and R. 4:72-2. Basically, a full trial must be held for a court to consider any application to change a child’s name. Many times a person may try to skip this requirement, and simply try to change the child’s surname by filing a motion. It is much easier to file a motion than to start a formal court case against your former spouse. In the case of Viola v. Fundrella, 241 N.J. Super 304 (Ch. Div. 1990), the court specifically held that a child’s surname cannot be changed by way of a motion but only via a complaint.
4. What is the most important case regarding the issue of changing the surname of a child?
The most important case on this issue is Gubernat v. Deremer, 140 N.J. 120 (1995). An overview of the facts of this case is very helpful. The parties were never married. The mother assumed most, if not all of the childcare responsibilities. After difficulties arose, the mother filed a motion seeking to change the child’s surname such that the mother’s name would be include in a hyphenated manner with the father’s surname. The trial court denied the request of the plaintiff, a mother, to change the surname of her son in order to include the mother’s surname hyphenated with the father’s surname. The Appellate Division affirmed the judgment. The case was then appealed to the New Jersey Supreme Court.
The New Jersey Supreme Court reversed the Appellate Division, and the case was sent down to the trial court for a hearing. The New Jersey Supreme Court established some clear law with regard to any name change applications for a child’s surname. The New Jersey Supreme Court held that when the primary caretaker seeks to change the surname of a child, then there is a presumption in favor of the primary caretaker that the name selected is in the best interest of the child. The presumption may be rebutted by proof offered by the secondary caretaker that the name change is not in the best interest of the child.
The Gubernat court also established several criteria for a trial court to use when deciding on a name change application for a child. Those factors include the length to 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 preference the child might express in assuming the child possesses sufficient maturity to express a relevant preference.
5. What are the important points of the Gubernat case?
The Gubernat case is a landmark case. Here, the New Jersey Supreme Court held that in contested cases the surname selected by the custodial parent, shall be presumed to be consistent with the child’s best interests. The non-custodial parent has the burden to prove to the court that it is not in the child’s best interest to have the custodial’s parents last name.
The Gubernat case has turned its back on the Anglo-Saxon tradition of naming the child with the last name of the father. The Anglo-Saxon tradition dates back to the Norman conquest of England in 1066. I don’t agree with the New Jersey Supreme Court’s decision to depart from almost 1000 years of tradition.
If a father is a “dead beat” father, and if he pays no attention to the child on a regular basis, then I support any surname change application(s) filed by a mother. However, if a father pays his child support and if he sees the child, then I don’t believe that the court’s should permit a mother to change the surname of the child. In my humble opinion, the New Jersey Supreme Court has “gone too far” in the Gubernat case. I support equal rights for all people. However, a 1,000 years of tradition and common law should not be “thrown into the waste basket” based on a liberal court’s views of equality.
6. What are some of the most recent cases that have dealt with applications to change the surname of a child?
A review of the recent case law indicates that the trial courts have tried to reach a reasonable compromise when it decides on any applications to change a child’s surname. In the case of Staradumsky v. Romanowski, 300 N.J. Super. 618 (App. Div. 1997), a mother of a child born out of wedlock sought to change the name of the child. The father objected, but the court granted her request. On appeal, the appellate court noted that the trial judge had not taken into consideration the factors that were enunciated by the New Jersey Supreme Court in the Gubernat holding. The court determined that the trial judge had gone too far in eliminating the father’s name entirely by utilizing the maternal grandfather’s name for the child’s middle name. It exercised original jurisdiction, to change the trial court’s order to reflect the father’s middle name as that of the child’s.
Another recent case is Ronan v. Adely, 182 N.J. 103 (2003). Here, the parties were never married. The mother assumed most, if not all, of the childcare responsibilities. After difficulties arose, the mother filed a motion to change the child’s surname such that the mother’s name would be included in a hyphenated manner with the father’s surname. The New Jersey Supreme Court held that the trial court and the appellate court applied an incorrect standard in denying the motion. There was a strong presumption in favor of the surname chose by the primary caretaker of a child. It was an error for the court to place the burden of proof upon the mother, the primary caretaker, to demonstrate that the name change she was proposing was in the best interests of the child. Instead, the father bore the burden of rebutting the presumption in the favor of the mother. The New Jersey Supreme Court further placed significant weight on the factor that the father did not object to the hyphenated surname proposed by the mother. Therefore, the case was remanded to the trial court for further proceedings.
In summary, the Ronan case is very illustrative as to how family courts are addressing emotionally charged applications to change the surname of a child. The family courts are encouraging the parties to give the child both surnames in a hyphenated manner. The local county courts strongly believe that it is in the child best interests to have both parents surname. I agree with this policy. A family court should always try to fashion any of their rulings to reduce any hostility and bitterness between any divorced couple. It is important to emphasize to any mothers who are trying to change the surnames of their child, that an unhappy father who feels “dissed” is more likely to be a “deadbeat” dad. Consequently, a vindictive mother may encounter severe child support collection problems if she is ultimately successful in changing the surname of the child. Therefore, changing the surname of a child can very well be a “pyrrhic” victory. The child’s quality of life will certainly suffer if a mother’s ability to collect child support is hindered.
7. What is the current status of the law concerning a name change for a child?
The custodial parent enjoys a strong presumption in favor of his or selection of the child’s surname. The noncustodial parent must fight an arduous battle to overcome the presumption through a preponderance of the evidence to demonstrate why, despite the strong presumption in favor of the custodial parent, the surname requested by the custodial parent is contrary to the child’s best interests.
The non-custodial parent must provide fully supported evidence to prove why the custodial parent’s choice of the surname is contrary to their child’s best interests. Some important factors for the court to consider in a name change case are as follows;
a. Relationship of the noncustodial parent to the child;
b. Whether the child currently shares his or her name with the members of his or her primary household;
c. Whether the child shares his existing surname with any siblings;
d. How long the child has had his or her existing surname;
e. The geographical proximity between the noncustodial parent and the child;
f. The age of the child;
g. Any trauma, embarrassment, confusion or anxiety caused by a sudden change in the child’s existing name:
h. The stability of the custodial home;
i. In any application to change the child’s name to a step-parent’s surname, the relationship of the child to the step-parent and the permanency of the relationship.
j. The support (both financial and emotional) the noncustodial parent has provided to the child; and
k. The preference of the child, if of sufficient age and maturity.