When parents divorce, they can resume use of their prior surname, if they changed that name when they originally married. Nowadays, fathers and mothers might be facing the question of whether to resume a prior name, especially if they used the same name as their child during the marriage. Parents have the right to change their names; whether a child’s name will change depends upon the parents and the Court. Even if parents are not married to each other, there are legal rights to decide the child’s surname.
Traditionally, children bear their father’s surname. However, in the late 1990s, the New Jersey Supreme Court rejected continued adherence to paternalistic preferences; favoring instead a “gender-neutral approach.” The Court established that in child-naming disputes, a child’s surname must be determined by applying the best interest of the child standard. This standard is not a new concept. In fact, today it is used to resolve most disputes involving children. It is a totality of the circumstances approach that “applies regardless of the label attached to the parents’ relationship at the time of the child’s birth. Whether the parents are married, in a civil union, unmarried, or in a short-term or long-term relationship, the relevant starting point is whether the parents agreed on a surname at birth.”
In disputes involving a parent seeking “to change the name given by the only custodial parent at birth,” that is, a unilaterally selected name, the New Jersey Supreme Court has clarified that the custodial parent’s name choice is presumed to be in the child’s best interest. However, this strong presumption is not irrefutable. The noncustodial parent who took no part in the original naming of the child may rebut this presumption by showing that a different surname is in the best interest of the child.
On the other hand, this presumption does not apply to name change disputes that arise after a surname has been selected at birth by both parents. In those cases, the New Jersey Supreme Court has stated that the parent unilaterally seeking the name change bears the burden of proving that the name change is in the child’s best interest, free from any presumption in favor of the custodial parent’s name choice. Notably, while the New Jersey Supreme Court has emphasized that “the preservation of the paternal bond is not and should not be dependent on the retention of the paternal surname,” it has not dispensed with the notion that in certain circumstances retention of the paternal surname is in the child’s best interest. Thus, where two parents have jointly agreed on their child’s name at birth, both parents stand on equal footing when demonstrating that a particular name is in the child’s best interest.
Moreover, when determining the best interests of the child in a naming dispute, courts must consider a list of non-exhaustive factors including: (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; and (4) the child’s preference if the child is mature enough to express a preference. The custodial parent’s preference is also a relevant consideration, though it is not dispositive. No single factor is determinative and not all factors are always relevant. However, in all cases, these factors should be considered with the child’s best interest in mind.
Ultimately, parents considering changing their child’s surname are encouraged to obtain the consent of their co-parent before seeking relief from the courts. If you are contemplating changing your child’s name, the experienced family law attorneys at Cohn Lifland Pearlman Herrmann & Knopf, LLP can help you understand your rights and obligations. Call us for more information.