FAMILY LAW

Emma v. Evans

New Jersey Law Journal

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Emma v. Evans, A-112 September Term 2011; Supreme Court; opinion by LaVecchia, J.; decided August 12, 2013. On certification to the Appellate Division, 424 N.J. Super. 36 (App. Div. 2012). [Sat below: Judges Fisher, Baxter and Nugent in the Appellate Division; Judge Cook in the Chancery Division, Family Part.] DDS No. 20-1-0973 [37 pp.]

This appeal arises from a postdivorce dispute over the surname given to two children by their married parents. After the parents' divorce was finalized, including the execution of a property-settlement agreement giving both parents joint legal custody and making no mention of any change to the children's surnames, the mother — the parent of primary residence of the children — unilaterally began using a hyphenated version of the parents' two surnames with hers listed first.

Paul Emma, the father, filed a motion seeking an order to prevent the use of the hyphenated name Evans-Emma. Jessica Evans, the mother, filed a cross-motion seeking to change the children's surname from Emma to Evans. The trial court denied Paul's request and granted Jessica's cross-motion. Relying on Gubernat v. Deremer, the trial court determined that the proper test in a name-change dispute was the best interests of the child and, in conducting that analysis, the surname chosen by the custodial parent is presumed to be in the best interests of the child. In so ruling, the trial court disagreed with Paul's argument that such a presumption only applied to children born out of wedlock.

On appeal, the Appellate Division reversed and held that a presumption in favor of the name chosen by the custodial parent was improper when the child was born in wedlock to parents who subsequently divorce. The panel concluded that the question was one of first impression and was not governed by the court's opinion in Gubernat. Canvassing other jurisdictions, the panel noted a strong disinclination to apply a presumption in favor of the primary custodial parent in cases where the parents were married at the time of the child's birth. The panel gave great weight to the fact that Jessica and Paul agreed to joint legal custody, noting that such custody requires parents to share the responsibility of making major child-rearing decisions. In the panel's view, the decision to change a child's name was a significant matter that required, at a minimum, an attempt to agree. The panel reversed the trial court's order and remanded for consideration of Jessica's name-change request based on the best-interests-of-the-child standard without a presumption in her favor.

The court granted Jessica's petition for certification.

Held: In a dispute to rename a child of divorced parents, the party seeking to alter the surname jointly given to the child at birth bears the burden of proving by a preponderance of the evidence that the change is in the child's best interest. Irrespective of whether the parents were married at the time of the child's birth, the best-interests-of-the-child test should be applied in a renaming dispute without a presumption in favor of the custodial parent's decision to change the jointly given surname of the child.

In this appeal, the court addresses the standards to be applied in resolving a dispute between divorced parents regarding a change in their children's surname.

In Gubernat, the court concluded that full legal equality for women was incompatible with continued recognition of a presumption that children must bear their father's surname. The court held that the appropriate standard governing naming disputes is the best-interests-of-the-child standard. The court recognized that difficulty could arise in applying that standard and adopted a presumption in favor of the surname chosen by the custodial parent to enhance the predictability of the best-interests-of-the-child test.

The court gleans from Gubernat an insistence on avoiding paternalistic preferences and ensuring a gender-neutral approach to child-naming decisions. For these purposes, a strong presumption in favor of the custodial parent's naming decision was of assistance. However, resolution of a dispute over the changing of a child's surname after parents jointly named their child should remain firmly fixed on the child's best interests.

The continued use of the Gubernat presumption can result in an automatic endorsement of the primary custodial parent's choice. The presumption operates on a premise of superior knowledge by that parent about the child's best interests. A change in the child's jointly given surname, however, is not akin to daily parenting decisions as to which a primary custodial parent's knowledge of a child is unique. The decision to change a child's name is a major decision. The joint custodians must make an attempt to agree on any change to their child's surname. Absent an agreement, the parties may bring their dispute to the courts, where they should start with equal rights — without either party benefiting from a presumption in his or her favor.

Gubernat's interest in gender neutrality is not promoted by broad continuation of a presumption in favor of a parent of a primary residence, or custodial parent, when applying the best-interests-of-the-child standard in name-change disputes that arise after a child has been given a surname jointly by his or her parents. In disputes over whether a child's agreed-on surname should be changed, it is not just to provide a presumption to a custodial parent's choice of name. The presumption in such renaming disputes is rejected irrespective of whether or not the parents were married at the time of the child's birth.

Applying the best-interests-of-the-child test in the context of a dispute over whether to change a child's name requires a fact-sensitive analysis. Some factors to consider are: the length of time the child has used his or her given surname; identification of the child with a particular family unit; potential anxiety, embarrassment or discomfort that may result from having a different surname from that of the custodial parent; and the child's preference if the child is mature enough to express it.

The judgment of the Appellate Division is affirmed as modified, and the matter is remanded to the Chancery Division.

Chief Justice Rabner; Justices Albin, Hoens and Patterson; and Judges Rodríguez and Cuff, both temporarily assigned, join in Justice LaVecchia's opinion.

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