And They Shall Call Him . . .? Post-Divorce Disputes Over Children’s Surnames

Should the custodial parent have the presumptive right to change his or her child’s surname after a divorce? That was the question that was asked of the New Jersey Supreme Court in Emma v. Evans, a recent case arising out of a dispute between ex-spouses.  In a recent ruling, the court held that when a child’s surname was selected jointly by both parents, whether they were married or unmarried at the time, it can be changed only if doing so serves the child’s best interests.

From Emma, to Evans-Emma, to Evans?

Jessica Evans and Paul Emma were married for almost seven years before Jessica gave birth to their first child in 2006; they had a second child in 2007.  Both children were given their father’s surname—Emma.  The couple divorced in 2010, and the terms of the divorce were based on a written settlement agreement between Jessica and Paul.  Among other features of the agreement, Jessica was named the primary custodial parent, Paul had the children on alternating weekends and Thursday nights, and the parties were to share so-called “legal custody.”

Physical custody refers to where the child lives—primarily with one parent (in sole custody) or more-or-less evenly with both (in joint custody).  Regardless of the arrangement regarding physical custody, parties can agree (or a court can order) that legal custody will reside solely with the parent with primary physical custody, or that it be shared between the parents.  Legal custody means the right to make, or participate in making, major decisions for the child, such as those relating to health, education, and religion.

Paul and Jessica’s agreement was silent on the right to change the children’s surnames.  Jessica, who had changed her name upon marriage, had resumed the use of her maiden name after the divorce.  Within just a few months, Paul learned that Jessica had been listing the children with the surname “Evans-Emma” (the combination of his surname and hers, with hers coming first) on paperwork relating to doctor’s visits and to school.  He sought a modification of their custody agreement, and requested an order preventing her from using the hyphenated surname for the children.  She then filed her own motion, asking that their names be changed simply to “Evans.”

The trial court denied Paul’s motion and granted Jessica’s, determining that the name chosen by the custodial parent—in this case, Jessica—was presumed to be the name that would be in the best interests of the children.  But the appellate court reversed that ruling, holding that allowing the custodial parent presumptively to change the child’s surname was inappropriate for children who were born to married parents who subsequently divorced.

Child-Naming: Many Potential Conflicts

As my Justia colleague Julie Hilden wrote about in a column earlier this week, controversies can arise regarding a child’s first name.  In the case she discussed, parents who were in court over a dispute about the child’s surname (similar to the one in Evans v. Emma), the judge forcibly changed the child’s first name—from Messiah, which she deemed religious over-claiming, to Martin.  The over-claiming was judicial, however, and this ruling is certain to be reversed.  (And, the thousands of boys named “Jesus” in this country can rest easy that their names will not be taken from them either.)

But the more common controversies relate to children’s surnames, particularly because parents, in various contexts, are likely to disagree.  The cases reflect a wide array of controversies, but the most common are these:

• An unwed mother seeks to give a child a man’s surname (a man whom she presumably believes is the biological father) without his consent and without an adjudication or acknowledgment of paternity;
• An unwed mother seeks to give a child her own surname, over the objection of the child’s biological father;
• A married couple who cannot agree on a child’s surname—whether it should be his, hers, or a hyphenated combination; or
• A divorced couple who initially agreed on a surname now disagree about whether it should be changed to conform to the custodial parent’s name.

These disputes do not take place in a vacuum.  The controversies over surnames occur against a backdrop of patronymy, the longstanding practice of giving children the surname of their fathers.  While this tradition is deeply entrenched in the United States, it is neither ancient in origin nor universal. (A few countries, such as Spain, follow a matronymic tradition.)

Prior to the Sixteenth Century in England, for example, surnames did not descend by inheritance at all.  Instead, an individual adopted his surname voluntarily, or his neighbors conferred it upon him.  Surnames were often descriptive.  (A skilled laborer might be known as “Goldsmith”; John’s son might be known as “Johnson.”)

In small towns, where everyone knew everyone else, surnames were not particularly important anyway.  But as population increased, and the need to distinguish between individuals with the same first name increased, surnames became more important.

Eventually, patronymics emerged.  They were a natural outgrowth of other rules dictating men as the head of families.  One such rule was coverture, which meant that a woman ceased to have her own legal identity after marriage and could not, among other things, own property in her own name.  Another was primogeniture, the rule of descent that dictated that the first son would be the sole inheritor of his father’s real property.

By the middle of the Twentieth Century, coverture was abolished in every American state.  Primogeniture had never been followed in the American states in the first place.  Yet patronymy was, and remains, dominant in the United States—at least for children born in wedlock.  The tradition for nonmarital children is the opposite—they are usually given their mother’s surname.

Before the 1970s, many states expressly provided that fathers had a right to have their children bear their surnames.  Fathers had a legal right to insist that birth certificates reflected that surname, and mothers who would try to change the name—post-divorce, for example—were usually unsuccessful unless the father had done something to forfeit his right.

But when the Supreme Court recognized a constitutional right of sex equality under the Fourteenth Amendment (which it did for the first time in 1971), laws that expressly preferred husbands over wives, or fathers over mothers, were vulnerable to attack.  States ceased being allowed to allocate burdens and benefits on the basis of sex, even within the family, where social norms and roles were still predominantly a function of sex.

Courts struck down a wide array of sex-based family laws, including those in which fathers were given an absolute right to name their children. These laws were replaced, by statute or judicial decision, with ostensibly gender-neutral standards.  But these laws do not create gender-neutral naming.  Children born in wedlock, for example, are almost always given their father’s surname.  A small number are given hyphenated names, comprised of the mother’s name and father’s name.  An even smaller number are simply given the mother’s surname.  (And the real rarity is children like mine, some of whom have their father’s last name, and some of whom have mine.)

Why does this history matter? Because when post-divorce name changes are proposed, it is almost always the case that the child has the father’s name, and the mother is seeking to give the child her name.  And the objection that she encounters—from the father and, sometimes, from courts– is based on the history and tradition that treats patronymy as the norm.  The name-changing mother is seen to be taking something away from the child and the father that society, even if not the relevant state statute, says that she should leave alone.

Typical Surname Laws at the Birth-Certificate Stage

Disputes about naming typically arise at one of two stages: (1) choosing the child’s name that will appear on the birth certificate, and (2)attempting to change that name later.

When the child is born, the parents may disagree about what surname should appear on the birth certificate.  Many states have statutes with explicit instructions for resolving such disagreements.

In Florida, for example, a child whose mother and father both have custody ,but who cannot agree on a surname will be given both surnames, hyphenated, with the names appearing in alphabetical order.  Other states provide that a court must decide, based on the best interests of the child, which surname should be entered on the birth certificate, in the case of parental disagreement.

By virtue of regulations adopted in 2000, the District of Columbia required all marital children to bear the surnames of their fathers.  Even if both parents wanted the child to bear the mother’s surname, they still could not enter that name on the birth certificate.  They, instead, were forced to institute a formal name-change proceeding for the child, subsequent to his or her birth.  (These regulations have since been suspended.) 

The rules for non-marital children are often different, however—favoring or requiring that the child bear the mother’s surname (or at least not the father’s surname).   In some cases, the law prohibits an unmarried mother from giving her child the putative father’s surname without his consent or an adjudication of paternity. 

Typical Law Regarding Child Name Changes

After the birth certificate is completed, another naming issue may arise if the parents divorce or split up.  Often, a custodial mother will seek to change the child’s surname to the new stepfather’s.  Sometimes, she will seek to change the child’s surname to her own “maiden” or birth name.

As with birth certificates, states have statutes to address name changes.  But these statutes, unlike birth-certificate statutes, often simply set out a general standard.  As a result, courts have played a bigger role in developing name-change rules than birth certificate rules.

Today, there are three main approaches—developed through both statutes and the cases interpreting them—to resolving disputes about a child’s name.

The first approach favors the status quo—that is, the original name.  A parent petitioning to change a child’s surname will only prevail if he or she can show that it would be detrimental to the child to keep his or her original name.

The second approach is exactly the opposite: It gives little weight to the status quo.  Instead, it gives the custodial parent the right to choose the child’s surname—including the right to adopt a new one.  Only a showing that the change to a particular name will be detrimental to the child can limit the exercise of this right.

The third approach adopts the generic standard that is applicable to most disputes involving children—that of the “best interests of the child.”  Under this approach, a court does not start with any presumption favoring, or disfavoring, the status quo.  Instead, it evaluates the name-change petition against a list of relevant factors.

New Jersey’s Approach in Emma v. Evans

The trial court in this case opted for the second approach, allowing Jessica at least a presumptive right to change her children’s surname.  But the state supreme court opted for the third—taking a “child-centric” approach and allowing a surname change, for children whose name was jointly selected by their parents, only if  the change was proven to be in the best interests of the child.

The case was litigated because prior cases had seemed to give the custodial parent the presumptive right to change a child’s surname.  In a landmark decision in 1995, Gubernat v. Deremer, the New Jersey Supreme Court rejected “six hundred years of paternalistic naming” as inconsistent with “full legal equality for women” and held that the law could not continue to presume that children should bear their father’s surnames.  Instead, the court held, the surname selected by the custodial parent must be presumed to be in the child’s best interests and thus will be permitted unless that presumption was rebutted.

In Emma, the mother argued that Gubernat gave her the right to change her children’s last names from Emma to Evans.  She was, after all, the custodial parent, and there was no proof that doing so was not in their best interests.  Thus, the question for the state supreme court was whether the Gubernat rule holds in cases where married parents had jointly selected the father’s name, and the mother seeks unilaterally to change it after divorce.

In the ruling in Emma, the court held that Gubernat did not apply to this case.  It did not draw a distinction between married and unmarried parents.  Rather, the court held, the distinction is between cases in which the parents jointly selected an initial surname, versus those in which one parent selected the initial surname.  Where the name was jointly selected, whether by married or unmarried co-parents, neither parent has the presumptive right to change it.  This is especially so, the court noted, when the parents share legal custody, which is an indication that they agreed to be co-decision-makers.  If either parent wants the unilateral right to change the surnames of children, the issue must be addressed in the divorce agreement or decree.

Under this new rule, child surnames can be changed, but only after the parent seeking the change establishes that the change will be in the child’s best interests.  Toward that end, the court enumerated eleven factors that might be relevant in any particular case: (1) the length of time the child has used his surname; (2) identification of the child with a particular family unit; (3) potential anxiety, embarrassment, or discomfort that may result from having a different surname from that of the custodial parent; (4) the child’s preference, if the child is mature enough to express a preference; (5) parental misconduct or neglect; (6) degree of community respect 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.

Conclusion

The court in Emma was trying to stay true to its promise in Gubernat of gender-neutral naming law.  It worried that because eighty percent of custodial parents are mothers (despite the use of ostensibly gender-neutral custody rules since the late 1970s), the presumptive right to change surnames will always be a change away from the father’s name and towards the mother’s name.  This, the court suggested, was allowing a kind of gender-bias to creep into the legal standard.  But what the court should have worried about, instead, is the power of social norms that result in almost all children still bearing their father’s surnames.  If the default rule favors the status quo—the name jointly selected at birth—it favors the father’s name, because that is the name that society still dictates that children should have at the outset.

It is not unreasonable to determine that children’s names post-divorce should not be changed unless it is in their best interests, especially in cases where the parents have agreed to share legal custody.  But it is unreasonable to suggest that the reason for doing this is to promote gender neutrality, when, in fact, it will do exactly the opposite.