Which parent has the right to name and re-name a child is a question that the New Jersey courts are answering with seemingly more frequency. Recently, our Appellate Division ruled in Emma v. Evans that there is no presumption in favor of the Parent of Primary Residence “PPR” (Mother) when seeking to change the surname of the child.
In this case the parties were married in 1999 and shortly after they had 2 children. Both children were given their father’s surname. The couple divorced several years later.
As part of their property settlement agreement the parties had joint legal custody of the children and Mother would be designated the Parent of Primary Residence. At some point after the divorce the mother filed a motion with the Court to change the children’s surname to “Evans-Emma”. Father opposed the name change. The trial court rejected the father’s arguments and entered an order changing the children’s surname to Evans-Emma. The father appealed.
The Appellate Division overturned the reversed the trial court judge’s decision and ruled in favor of the Father, for several reasons. First, a presumption in favor of the maternal surname would create a bias since, in the majority of cases, the PPR following a divorce is the child’s mother. Second, and what was probably the most significant issue to the Appellate Court, was that the parties stipulated at the time they divorced that they would exercise joint legal custody.
The Appellate Court found that the agreement to exercise joint legal custody was significant because a stipulation to joint legal custody constitutes the parties’ agreement to share “authority and responsibility for making ‘major’ decisions” regarding the welfare of the children, calling upon “both parents to remain decision-makers in the lives of their children
The Court also found that the decision to seek a change in a child’s surname constituted a significant matter relating to the child’s health, safety and welfare. Because they agreed to joint legal custody, both parties recognized that neither possessed a superior right in such an important matter.
Therefore the case was ultimately remanded for further consideration based upon the application of the best-interests factors without resort to a presumption in favor of the mother. The Court held that the factors to be considered in applying this best-interests standard include:
1. The length of time that the child has used one surname;
2. The identification of the child as a member or part of a family unit;
3. The potential anxiety, embarrassment, or discomfort the child might experience if the child bears a surname different from the custodial parent; and
4. Any preferences the child might express, assuming the child possesses sufficient maturity to express a relevant preference.
If you were a loved one has questions regarding changing a child’s name, child custody or any other family law matter contact the child custody attorneys at DeMichele and DeMichele. For a confidential consultation to discuss your situation call (856) 546-1350.