Changing A Child’s Last Name Over The Objection Of One Of The Parents

Civil Rights Law § 63 authorizes a child’s name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change. Under what circumstances will the Court allow a change over the objection of one of the parents?

The following case sheds light on what the court will consider upon an application for a name change.

Michelle I. Esquenazi (the mother) and John Eberhardt (the father) are the parents of a daughter, Mariah (hereinafter the child). When the child wasborn, the parties had been in a committed relationship for a number of years and lived together along with the mother’s three children from a prior marriage. The parties had been planning on marrying at the time, but decided to postpone the wedding until after the child’s birth. The child was born, and she was given the father’s surname, as reflected by the child’s birth certificate and the acknowledgment of paternity. A wedding never took place. Approximately 1½ years after the child’s birth, the father moved out of the parties’ home. The mother maintained physical and legal custody of the child, with the father visiting her regularly.

The mother petitioned the Supreme Court for permission to change the child’s surname by hyphenating the father’s surname with the mother’s surname.

At a hearing on the petition, the mother testified that during her pregnancy, she and the father “discussed” the child having both parties’ last names. Although only the father’s surname was used on the child’s birth certificate, an announcement of the child’s birth used both parties’ surnames.

At 2½ years of age, the mother testified that the child was baptized into the Lutheran Church. Leading up to the baptism, the parties had discussed using both parties’ surnames, as the mother claimed that she wanted the child to identify with both parents and to share the surnames of her maternal and paternal half-sibling. The parties attended the baptism, and the pastor announced the child to the congregationas Esquenazi-Eberhardt. The baptismal certificate, which the father saw, reflected the child’s surname as a combination of the parties’ surnames. The mother claimed that the father did not object to the child’s surname.

The child was enrolled in preschool, registered as Esquenazi-Eberhardt, and again under the same hyphenated surname when she started kindergarten. The father attended various school functions, including the child’s graduation from preschool to kindergarten, and then kindergarten to the first grade, where the parties’ hyphenated name was used during the roll-call of graduates, in pamphlets announcing the graduates, and graduation certificates, all without objection from the father.

At around four years of age, the child began to write her hyphenated name. In school, on important tests or pieces of artwork, the child would write out both full surnames, while on informal assignments she abbreviated the hyphenated surname to “E.E.”

It was the child’s self-identification as Esquenazi-Eberhardt that the mother offered as a reason why the name change would promote the child’s best interests. The hyphenated name gave the child a connection with both parents, her paternal and maternal half-siblings, and her ethnic heritage, Cuban-American on the mother’s side, and Native-American on the father’s side.

The father testified that when the child was born, there was never really any conversation about the child’s last name. It was simply a given that she would have only his surname, as the parties were planning on marrying and he was the father.

The father denied ever seeing or hearing the child’s hyphenated surname used in the birth announcement, at the baptism, or at school events such as the child’s graduation from kindergarten and, if he attended, preschool. He claimed that he never acquiesced to the child using both surnames. On both the custody and support orders, the child had only the father’s surname. The father testified that the first time he saw the hyphenated surname used was when the mother filled out a passport application. The second time, the child came to the father’s home with a report card that contained the mother’ssurname, with the father’s surname penciled in next to it. The mother explained, when he questioned her, that the school had made a mistake, using the mother’s surname because one of her other children attended the same school. The mother told him that she would have it corrected.

The father claimed that he had seen the child use the hyphenated surname in writings, but that was after he objected to her using it.

Asked why he objected to the proposed name change and why retaining the child’s current surname would promote her best interests, the father answered,

“Moralistic values, traditional values. Her name is and always was legally Mariah Ruby Eberhardt and I don’t see any reason or need for it to be changed. It was never agreed upon between the mother and myself, and I think the lesson that’s learned from being able to make anything, anything you want, any time you want to, is really a deviation of values and morals that should be instilled in a child.”

The father believed that a hyphenated name announced to the world that the child came from a broken relationship. He asserted that the questions that would come from her hyphenated surname would be a source of embarrassment.

The lower court dismissed the mother’s proceeding finding that the father had reasonable objections to the name change. He was involved in the child’s life; he visited with her, provided her with emotional and financial support, and included her in his extended family. The Supreme Court indicated that in the absence of misconduct, abandonment, or lack of support, the application should not be granted.

Further, the Supreme Court concluded that the mother had failed to establish that the proposed name change was in the child’s best interests. The Supreme Court credited the father’s testimony that he never acquiesced in the use of the hyphenated name for the child. The use of the hyphenated name, the Supreme Court found, appeared to promote the interests of the mother, and not the child. Were the mother’s petition to be granted, it would reward her for her unilateral action in teaching the child to identify herself with a hyphenated name, and such would be contrary to the child’s best interests.

Upon appeal the Appellate court reversed the Supreme Court and granted the mother’s application, stating that while the father raised objections to the proposed name change, they were not reasonable and that his concerns had no relation to the best interests of the child, nor did they bear on his relationship with the child. The father’s objections were directed toward the mother, for her having unilaterally taught the child to identify with both parents’ surnames.

The Appellate Court further stated that the lower court’s reliance on cases where the mother was seeking to change the child’s surname from the father’s last name to that of the mother was misplaced, as the mother in this case is not seeking to eliminate the father’s surname. Certainly a parent’s misconduct, abandonment, or lack of support is relevant in any proposed name, but where the mother is merely seeking to add her last name and not to eliminate the father’s name, the fact that the father supports the child does not preclude the proposed change.

To the extent the father’s objection was based on traditional values, meaning that it is Anglo-American custom to give a child the father’s name, the objection is not reasonable, because neither parent has a superior right to determine the surname of the child. Moreover, the objection must relate to the child’s best interests or bear on the parent’s relationship with the child, and the father failed to articulate, nor could he, how custom was relevant to either of those concerns.

Contrary to the father’s testimony at the hearing, the Appellate Court indicated that the use of the child’s hyphenated name does not announce to the world that she comes from a broken family, as some married couples choose to give their child a hyphenated surname. More importantly, the Court would not accord preference to paternal surnames in the context of determining the bests interest for the child.

In any case involving the best interests standard, the Court stated that whether a child’s best interests will be substantially promoted by a proposed name change requires a court to consider the totality of the circumstances.

Among the myriad of factors or circumstances that a court may consider in determining whether a proposed name change substantially promotes the child’s best interests, there are several that warrant special mention: (1) the extent to which a child identifies with and uses a particular surname; (2) the child’s expressed preference, if of sufficient age and maturity to articulate a basis for preferring a particular surname; (3) whether the child’s surname differs from the surname of the custodial parent; (4) the effect of the proposed name change on the child’s relationship with either parent; (5) whether the child’s surname is different from any of her siblings and the degree to which she associates and identifies with siblings on either side of her family; (6) whether the child is known by a particular surname in the community; (7) the misconduct, if any, of a parent, such as the failure to support or visit with the child; and (8) the difficulties, harassment, or embarrassment that the child may experience by bearing the current or proposed surname .

Considering these factors and the fact that the mother is seeking only to add her surname to the child’s current surname, the proposed name change to hyphenate the child’s surname to include both parents’ last names substantially promotes the child’s best interests. The child considers her last name to be Esquenazi-Eberhardt as evidenced by, among other things, the fact that she regularly writes the hyphenated name. The child has been using the hyphenated name for a number of years, and she is generally known in the community by her hyphenated name. Thus, to require the child to revert back to the surname given to her at birth may cause her difficulties, harassment, or embarrassment. The use of the hyphenated name will be a symbolic reminder of, and source of identification and association with, both her father and her mother, the mother having always been the child’s custodial parent. The hyphenated name will also be a reminder of the ethnic heritage of both parents, as well as her half-siblings on each side.

Accordingly, because there was no reasonable objection to the proposed name, and the interests of the child would be substantially promoted by the change, the mother’s petition is granted and Mariah was allowed to continue to use the hyphenated surname.

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