Have you recently been divorced, and now think you might like to change your child’s last name? Were you and your child’s other parent never married, but your child’s last name is different than yours? Maybe you’d like to change it now? Either way, you need to know the legal standard that our court’s employ.
Since 1995, and the case of Gubernat v. Deremer[1] New Jersey courts have held that when parents who are not raising a child together (such as divorced parents or parents who were never married), do not agree about the child’s name, the court must resolve the dispute under the “best-interest-of-the-child” standard with a strong presumption that the name selected by the “custodial parent” is in the child’s best interest. Does this mean that the custodial parent can change a 7 year old child’s name simply by choice? No – it’s never that simple. The strong presumption in favor of the custodial parent’s choice is not irrefutable. Evidence that the child has used the other parent’s name for a period of time; or that the child has a level of comfort with a certain name can serve to weaken the custodial parent’s choice. Our courts will scrupulously examine all factors relevant to the best interest of the child; including the length of time the child used one surname, the identification of the child as a member of a family unit, the potential anxiety or embarrassment a child might experience if their surname is different from the custodial parent and any preference the child might express, if sufficiently mature.
Recently, one panel of the Appellate Division, distinguished the presumption established by the Gubernat case, and held that the presumption in favor of the custodial parent’s choice does not apply to children born to married parents. In other words, the choice of the custodial parent of a child born out of wedlock is entitled to greater deference than the choice of the custodial parent who was divorced from the child’s non-custodial parent. The reason given for the distinction is that a child born “in wedlock” was originally named by a marital partnership with the intent that the designation remain permanent. Just this week, however, on March 6, 2012, another panel of the Appellate Division declined to adopt such a view, and reiterated the standard of Gubernat, that the custodial parent’s choice is presumed to be in the child’s best interest, regardless of whether the child was born “in” or “out” of wedlock.
It is interesting to note however, that both recent cases commented that consideration should perhaps be given to the parties’ settlement agreement (if one exists). For if the parties expressed a position in a written agreement regarding the child’s name, then the standards for enforcement of an agreement, or modification because of changed circumstances, might apply. These comments suggest that our courts will continue to address this issue, and perhaps further define the standard to employ in name change situations.
For more information, I can be reached at 609-601-6612 or spedrick@youngbloodlegal.com.
Stephanie Pedrick
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