Posted June 9, 2020
In matters involving unmarried parents, New Jersey Courts have adopted a presumption in favor of the surname chosen by the custodial parent. Gubernat v. Deremer, 140 N.J. 120, 144 (1995). However, in adopting that presumption, the Court expressly stated, “we readily envision circumstances in which the presumption could be rebutted.” Id. “The non-custodial parent bears the burden of demonstrating by a preponderance of the evidence that despite the presumption favoring the custodial parent’s choice of name, the chosen surname is not in the best interests of the child.” Id. at 145.
Courts are instructed to scrupulously examine all factors relevant to the best interests of the child. Id. In determining the advantages and detriments to a child assuming either the maternal or paternal surname, the Gubernat Court set forth a number of factors relevant to the “best-interests-of-the-child” standard, including:
(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.
Id. at 141.
In the case of Emma v. Evans, 215 N.J. 197 (2013), although distinguishable from Gubernat because the parents were formerly married and later divorced, the Court expanded upon the factors to be considered under a “best-interests-of-the-child” determination when considering name-change applications. “The best-interests-of-the-child” test applies regardless of the label attached to the parents’ relationship at the time of the child’s birth.” Emma, 215 N.J. at 222. The Emma Court provided additional considerations as part of a “gender-neutral and child-centered totality-of-the-circumstances analysis of the child’s interest in retaining or having altered his or her given surname.” Id. at 223. Those additional factors include the following:
(5) Parental misconduct or neglect, such as failure to provide support or maintain contact with the child;
(6) Degree of community respect, or lack thereof, associated with either paternal or maternal name;
(7) Improper motivation on the part of the parent seeking the name change;
(8) Whether the mother has changed or intends to change her name upon remarriage;
(9) Whether the child has a strong relationship with any siblings with different names;
(10) Whether the surname has important ties to family heritage or ethnic identity; and
(11) The effect of a name change on the relationship between the child and each parent.
It is important to note that the list of factors outlined by the Courts above is “non-exclusive.” Superior Court Judges will analyze each matter on a case-by-case basis taking into account the totality of the circumstances. Courts will make determinations regarding the appropriate surname after considering the best interest of the child which must be supported by sufficient, credible evidence present in the record. In many cases, Courts find that the use of the surname of both parents is appropriate and Order that the child’s last name be hyphenated to include both names.
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