Parents Stand on Equal Footing in Child Name-Change Applications

Michael Booth

New Jersey Law Journal

2013-08-13

Pulling back on a nearly two-decade-old doctrine, New Jersey's highest court held Monday that where parents agreed on a child's surname at the time of birth, there is no presumption in favor of the custodial parent if the name is later sought to be changed.

"An approach that grants neither parent a preference when they agreed on a name at birth advances the goal of gender neutrality and eliminates distinctions between children born during marriage and children born outside of wedlock," the unanimous court held in Emma v. Evans, A-112-11.

The court applied a different analysis than in Gubernat v. Deremer, 140 N.J. 120 (1995), where it found a presumption in favor of the primary custodial parent involving the initial naming of a child born out of wedlock.

"With modern life giving rise to so many varied relationship settings into which a child may be born, we fail to see how Gubernat's interest in gender neutrality is promoted by broad continuation of a presumption in favor of a parent of primary residence," the court said.

Paul Emma and Jessica Evans were married in 1999 and divorced in 2010. They were given joint custody of their two children, now aged 6 and 7. Evans was named parent of primary custody. There was no discussion in the final judgment of divorce concerning the children's surnames. Within months, Evans began using Evans-Emma as their surnames on medical and school forms.

Emma filed a motion seeking to bar his ex-wife from changing the surnames and she filed a cross motion asking that she be allowed to change the children's surname to Evans. Burlington County Superior Court Judge Terrence Cook granted Evans' motion, saying there was a presumption in favor of the primary custodial parent.

The Appellate Division, citing the goal of gender neutrality, reversed, saying there should be no presumption in favor of the primary custodial parent. Evans appealed to the Supreme Court.

In reversing, the court applied the best-interests test and said "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 court identified a series of factors judges should use when ruling in name-change disputes:

• The length of time the child has held the original surname.

• The child's identification with a particular family unit.

• Any potential anxiety, embarrassment or discomfort the child may have with having a different surname than that of the primary custodial parent.

• The child's preference, if he or she is mature enough to state a preference.

• Evidence of parental misconduct or neglect.

• Degree of respect, or lack of respect, in the community with either name.

• Improper motivation on the part of either parent.

• Whether the mother has changed her name, or intends to do so if she remarries.

• The strength of the child's relationships with any siblings with different surnames.

• Whether the original surname has any strong ties to family heritage or ethnic history.

• The possible effects a name change would have on the relationship between the child and each parent.

Emma's lawyer, Richard Klineburg, says the court's ruling clears up a "muddle" of what courts have been doing statewide since Gubernat.

"There have been a lot of changes in society," says Klineburg, of Haddonfield's Klineburg & Nussey. "The court took a look at a lot of different areas, came up with a good test and said 'This is how it's going to be.'

"Without this ruling, you could have primary custodial parents changing their children's names every couple of years," he says.

Evans' lawyer, Merchantville solo Lynda Yamamoto, says the ruling was "not entirely unexpected."

"The court found that Gubernat ... really can no longer be universally applied," Yamamoto says. "The court went with a strictly best-interests-of-the-child approach with no presumption in favor of the primary custodial parent."