Neither Parent Can Unilaterally Change Their Child’s Last Name

In William Shakespeare’s Romeo and Juliet, Juliet proclaims to Romeo, “What’s in a name? That which we call a rose By any other name would smell as sweet;”  This quote is taken to mean that it does not matter that Romeo’s surname is that of her family’s rival clan the Montagues. Unlike Shakespeare’s star-crossed lovers, New Jersey Courts take the position that a name does matter particularly when a parent unilaterally decides to change a child’s name. 

If a party to a divorce or an unmarried parent prefers to have the parties’ child or children’s last name change or hyphenated they will have to demonstrate to the Court that it is in the child’s best interest to change or hyphenate their name. To do that the party has the burden of demonstrating to the Court a host of factors, such as:

  1. The length of time the child has used his or her given surname
  2.  Identification of the child with a particular family unit.
  3. Potential anxiety, embarrassment, or discomfort that may result from having a different surname from that of the custodial parent.
  4. The child’s preference if the child is mature enough to express a preference.
  5. Parental misconduct or neglect, such as failure to provide support or maintain contact with the child.
  6. Degree of community respect, or lack thereof, associated with either paternal or maternal name.
  7.  Improper motivation on the part of the parent seeking the name change.
  8. Whether the mother has changed or intends to change her name upon remarriage.
  9. Whether the child has a strong relationship with any siblings with different names.
  10. Whether the surname has important ties to family heritage or ethnic identity.
  11. The effect of a name change on the relationship between the child and each parent.

In 2013, the New Jersey Supreme Court addressed the question of whether a custodial parent who unilaterally changes her child’s surname is entitled to the presumption that changing a child’s surname is in the child’s best interest?  In Emma v. Evans, 71 A.3d 862, 215 N.J. 197 (2013), the plaintiff, Paul Emma, and defendant/ex-spouse Jessica Evans, exercised joint legal custody over their children with their mother serving as the primary residential/physical custodian.

A few months after the couple divorced, the mother unilaterally changed the children’s surnames from Emma to Evans-Emma on healthcare forms and school records. Upon discovering this change, the children’s father petitioned the trial court to enter an order preventing the use of the name Evans-Emma as the children’s surname. In response to the father’s motion, the children’s mother filed a cross-motion seeking to change their children’s surname from Emma to Evans. The trial court entered orders denying the father’s request to have the children use the name Emma instead of Evans-Emma and granting the mother’s  cross-motion to change the children’s legal surname from Emma to Evans. Relying on Gubernat v. Deremer, 140 N.J. 120 (1995) (a case involving a child born out of wedlock), which held that the proper test was the best interests of the child, as such the surname chosen by the custodial parent was presumed to be in the best interest of the child.   Ultimately, the New Jersey Supreme Court sided with the child’s father holding that a party seeking to alter a child’s surname given at birth must show by a preponderance of the evidence the name change is in the best interests of the child.  Contrary to the argument pressed by the child’s mother there was no presumption in favor of the custodial parent’s decision to change a child’s surname. 

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As an experienced family law attorney, Sam Stoia has worked with name change matters extensively.  Contact us to set up a complimentary meeting to discuss the particulars of your case.

Neither Parent Can Unilaterally Change Their Child’s Last Name

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