New Case Law: Contested Name Changes for Minors Post-Divorce

September 9, 2013

Controversies often arise in the context of minor name changes.  The most frequent controversies involve disputes over the minor’s surname either at birth or post-divorce.  In Emma v. Evans, (N.J. Aug. 12, 2013), the New Jersey Supreme Court recently addressed the situation of disputes that arise post-divorce.  Prior to Emma, in Gubernat v. Deremer, 140 N.J. 120 (1995), the Court addressed the issue of disputes involving the child’s surname at birth.  In Gubernat, the Court held that when parents cannot agree on the child’s surname at birth, a presumption arises that the name chosen by the custodial parent is consistent with the best interests of the child.  The non-custodial parent may rebut this presumption by presenting evidence that a different surname would better serve the child’s interests. 

In Emma, the mother and father married in 1999.  They subsequently had two children.  The parents gave the children their father’s surname.  The couple later divorced and agreed to joint legal custody with the mother as the primary custodian.  The mother thereafter sought to change the children’s surname to Evans.  Relying on the Court’s decision in Gubernat that the name chosen by the custodial parent is presumed to be in the best interests of the child, the trial court granted the mother’s request to change the children’s name to Evans.

On Appeal, the Supreme Court reversed, concluding that the presumption in favor of the custodial parent should not apply to renaming decisions.  The Court reasoned that, because both parents agreed on a name at birth, the parent attempting to change the minor’s surname post-divorce must demonstrate that the surname change would be in the best interest of the child – without giving any preference to the custodial parent.  The Court then articulated eleven factors to be considered in determining the bests interests of the child: (1) how long the minor used the surname; (2) the child’s identification with a particular parent; (3) the discomfort that may result from having a different surname from the custodial parent; (4) the child’s wishes; (5) parental neglect or misconduct; (6) community respect for either the paternal or maternal name; (7) the motivation of the parent seeking to change the minor’s name; (8) whether the mother intends to change her name upon remarriage; (9) the child’s relationship with siblings of different names; (10) important of surname change to family heritage or identity; and (11) the effect of the name change of the child’s relationship with either parent.

If you would like to change the name of your minor child, contact the Law Office of Randolph H. Wolf today.  We can help you apply for a court ordered name change and understand the requirements for contested name changes should the other parent dispute your choice.  Call us today at (732) 741-4448.

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