Minor Name Change After Divorce in New York and New Jersey

POST-DIVORCE MINOR NAME CHANGE APPLICATIONS FILED BY CUSTODIAL MOTHERS TO CHANGE A CHILD'S LAST NAME: A SURVEY OF RECENT DECISIONS BY COURTS IN NEW YORK AND NEW JERSEY

A Frequent Scenario: Post-Divorce Name Change Petitions Filed by a Custodial Mother

A large percentage of minor name change applications are filed by custodial mothers after a divorce judgment has been entered. Frequently, the custodial parent has resumed using her maiden (premarital) name. In other instances, the mother has remarried, and she now has a new, marital surname. The mother desires to share the same surname as her child. Quite often, the subject child has a similar wish, and he or she may experience some discomfort or embarrassment because his or her last name is different than the last name of the mother, siblings and other members of the household.

The feelings of discomfort for such children can be particularly acute where the noncustodial father has failed to maintain a close bond with the subject child. In such instances, the failure to have the same last name as the mother can serve as a constant, bitter reminder to the child that the natural father has absented himself from the child's life. Sometimes, a minor name change application is filed with the court at the impetus of the child.

In many circumstances, the child's feelings of discomfort are not articulated until years after a divorce judgment has been entered. Therefore, it is not uncommon for minor name change issues to be raised, for the first time, in a name change proceeding (rather than as part of the previous divorce action). Simply stated, at the time of the divorce, the parties may have underestimated the psychological and legal importance of the issue. It may not have been apparent, at the time of the divorce, that the child would experience any discomfort in connection with having a different last name than his or her mother.
Legal Standard in New York, and Recent Decisions by New York Courts:

Pursuant to New York's Civil Rights Law (CRL), in considering an application to change the name of a minor, the court is required to determine whether the proposed name change will promote the child's best interests. That legal standard is set forth in Section 63 of the CRL, which provides, in relevant part:

If the court to which the petition is presented is satisfied thereby, or by the affidavit and certificate presented therewith, that the petition is true, and that there is no reasonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the interests of the infant will be substantially promoted by the change, the court shall make an order authorizing the petitioner to assume the name proposed.

CRL, § 63.

Pursuant to Section 62 of the CRL, if only one of the natural parents is petitioning for the child's name change, he or she is required to provide notice to the other parent. However, under certain circumstances, the court is permitted to waive the notice requirement.

Most recently, in the case, Matter of Eberhardt, 6016/10 (which was reported by the New York Law Journal on April 7, 2011), New York's Appellate Division for the Second Department overruled a trial court's order, and granted a request by a mother (who had legal custody of the child) to change her nine-year-old daughter's last name to a hyphenated name reflecting the names of both parents - notwithstanding the objections of the child's father.

The Appellate Division's analysis in Matter of Eberhardt offers significant insights regarding the circumstances, interests and concerns which motivate custodial parents to file name change applications for their children. Among other issues, the Appellate Division noted that a hyphenated last name would promote the minor child's interests by serving as a reminder and affirmation of the respective ethnic heritages of both the child's mother and father.

In its decision, the Appellate Division specifically states that the granting of the requested name change was partially justified because the mother was requesting that both parental surnames be incorporated in the new surname:

[t]here is no basis on which the 'Anglo-American custom to give a child the father's name' could be argued to have any bearing on the child's best interests, the judge said. That is particularly the case where a petitioning mother ... is seeking to add her last name and not to eliminate the father's.

Based on the court's analysis in Matter of Eberhardt, a custodial parent who anticipates opposition to a name change petition by the non-custodial parent may wish, for strategic reasons, to propose a hyphenated last name for their child, rather than eliminating the noncustodial parent's name.
The Approach of New Jersey Courts to Post-Divorce Name Change Applications by Custodial Mothers:

When a one parent, over the objection of the other natural parent, files a legal name change petition on behalf of a minor child, courts in New Jersey utilize the "best interest" standard in deciding whether to grant the name change application. Under New Jersey case law, the factors to be considered by the Superior Court in deciding whether a proposed name change is the minor child's best interest include:
- The length of time that the child has used one surname;
- The identification of the child as a member of a family unit;
- Potential anxiety, embarrassment or discomfort that the child may experience by having a different surname than the custodial parent; and
- The child's preferences
In 1995, the Supreme Court of New Jersey ruled that there was a general presumption that a child's best interest was best served when the child has the same surname as the custodial parent. The Court reasoned that "because the courts award custody on the sole basis of the child's best interest, the custodial parent presumably would be acting in the best interest of the child when he or she names the child." Gubernat v. Deremer, 140 N.J. 120 (1995).

However, by virtue of a decision entered by New Jersey's Appellate Division in January, 2012, the presumption in favor of the custodial parent is now applicable in limited circumstances. Specifically, the Appellate Division ruled that where the natural parents were married at the time of the subject child's birth, there is no presumption in favor of either party. Each party (both the primary caretaker and the noncustodial parent) has an identical burden of proof as to the child's surname. Emma v. Evans, 2012 WL 162711.

The NJ Appellate Division's recent decision gives such fathers greater leverage in stopping a post-divorce minor name change application. However, if the father has not established a close bond with the child, and the child (having reached an age and level of maturity such that the court can appropriately place significant weight on his or her preferences) expresses a clear preference to share the mother's surname, the mother's application still stands a significant likelihood of being granted.

Marc A. Rapaport, Esq.
February 14, 2012
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