Marriage of Karayan & Serwer CA1/4 ( 2020 )

Filed 12/24/20 Marriage of Karayan & Serwer CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re the Marriage of PAUL
KARAYAN and LAURA SERWER.
PAUL KARAYAN,
Appellant,
A160107
v.
LAURA SERWER, (San Mateo County
Super. Ct. No. 17 FAM 03160)
Respondent.
Paul Karayan (Paul) appeals from an order that changes the last name
of the six-year-old child of his former marriage with Laura Serwer (Laura)
from Serwer Karayan to Serwer-Karayan. Laura’s surname will thus no
longer be one of the boy’s middle names but part of his new, hyphenated
surname. Although the requisite evidence in the record is meager, we shall
affirm because the evidence satisfies the deferential standard of review.
Factual and Procedural History
Paul and Laura married in September 2010; their son was born in
December 2013; and they separated in May 2017. The court entered a
bifurcated judgment dissolving their marriage in December 2018 and a final
judgment on reserved issues in June 2019. In August 2019, they agreed to
share physical and legal custody of their son. Paul later married Jamie
Pereyda (Jamie), who began using his surname.
1
In August 2019, the parties discussed with a coparenting counselor the
issue of emergency-contact forms. Their son then had two middle names, of
which the second, Serwer, is Laura’s surname, which she retained during the
marriage. Laura asked Paul to agree to change their son’s surname to
Serwer-Karayan; he declined. In early September, the parties discussed the
surname dispute with the counselor and agreed on a protocol for using their
son’s full name on school and extracurricular forms if possible.
Later that month, Laura filed a request for order (RFO) asking the
court to order (1) that the boy’s surname be changed to Serwer-Karayan and
(2) that, on all forms, both parents use their son’s full name and list each
other as first or second emergency contact. Laura based her request on a
declaration alleging that Paul “often fills out emergency and contact forms for
[the child]’s providers and leaves ‘Serwer’ out” and “lists his wife [Jamie] as a
contact, sometimes to the exclusion of me,” while sometimes giving Jamie’s
last name as “Karayan.” Her memorandum also cited a passage in In re
Marriage of Schiffman (1980) 28 Cal.3d 640, 647 (Schiffman) noting that use
of the maternal surname may support the mother-child relationship.
Paul opposed the name-change request but declared that he had no
substantive objection to the two other requests. He insisted that no one had
ever experienced confusion about Laura’s and Jamie’s respective roles and
contended that Laura’s motive for requesting the order was a desire to
prevent Jamie’s recognition as the boy’s stepmother, noting an incident in
which Laura crossed out the designation “stepmom” next to Jamie’s name on
a school form and, next to her own name, wrote “[child’s first name]’s only
mom.” Paul added that his family fled Turkey during the Armenian genocide
and that his son is the lone member of his generation who can carry on the
Karayan surname.
2
Laura replied that making Serwer part of her son’s last name would
“reflect [his] relationship with both of his parents and extended families” and
“honor[] both sides of [his] heritage,” including her Jewish ancestry. She
quoted the following passage from Schiffman: “In recognizing a father’s right
to have his child bear his surname, courts largely have ignored the impact a
name may have on the mother-child relationship. Perhaps that is because
mothers, usually given custodial preference in the past, generally had more
regular contact and could maintain a psychological relationship without the
need for the tie a surname provides. However, ‘the maternal surname might
play a significant role in supporting the mother-child relationship, for example,
in the cases where the father is the custodial parent or where the custodial
mother goes by her birth-given surname.’ [Citation.] [The mother in this case]
uses her birth name; and [the child’s] future friends, neighbors, teachers,
acquaintances, and family indeed may associate [the child] with [that
surname] rather than [her father’s surname]. The trial court apparently
failed to weigh those considerations and relied exclusively on the
anachronistic, father’s ‘primary right’ theory to decide the issue.” (Schiffman,
supra, 28 Cal.3d at pp. 647–648.)
The trial court granted Laura’s RFO in full. On the lone contested issue
of the surname change, it explained: “I don’t think that there is an issue
concerning the change of the name based on the child’s young age. I think it
will be a very minor disruption to [him]. Also, I did review, specifically, the
issues around the mother having her name have a role in the child’s name, and
the case law on that I also found to be persuasive.” Paul then filed a timely
notice of appeal.
3
Discussion
In Schiffman, supra, 28 Cal.3d 640 our Supreme Court eliminated the
common-law presumption that a child born in wedlock should bear the
father’s surname. “Henceforth, as in parental custody disputes, the sole
consideration when parents contest a surname should be the child’s best
interest. . . . [¶] Under the test thus revised the length of time that the child
has used a surname is to be considered. [Citation.] If . . . the time is negligible
because the child is very young, other facts may be controlling. For instance,
the effect of a name change on preservation of the father-child relationship,
the strength of the mother-child relationship, and the identification of the
child as part of a family unit are all pertinent. The symbolic role that a
surname other than the natural father’s may play in easing relations with a
new family should be balanced against the importance of maintaining the
biological father–child relationship. ‘[T]he embarrassment or discomfort that
a child may experience when he bears a surname different from the rest of
his family’ should be evaluated.” (Id. at p. 647.) As Laura emphasizes, the
court continued: “ ‘the maternal surname might play a significant role in
supporting the mother-child relationship . . . where the custodial mother goes
by her birth-given surname.’ ” (Ibid.) The mother in Schiffman did so, and the
court noted that the child’s “future friends, neighbors, teachers,
acquaintances, and family indeed may associate [the child] with [that
surname] rather than [the father’s surname].” (Id. at p. 648.)
In this case, the trial court stated without elaboration that it had
reviewed “the issues around the mother having her name have a role in the
child’s name,” and that “the case law on that I also found to be persuasive.”
Schiffman identifies two distinct benefits of making the mother’s name part
of the child’s name: the matching surnames will further “the identification of
4
the child as part of a family unit” with the mother in the eyes of family,
friends, teachers, and others, and “ ‘the maternal surname might play a
significant role in supporting the mother-child relationship.’ ” (Schiffman,
supra, 28 Cal.3d at p. 647.)
Laura did not submit any evidence and did not seriously contend that a
name change was needed to bolster the mother/child relationship. Nor does
she make any such contention on appeal. To the contrary, she asserts that
“[t]he fact that the parties share joint legal and physical custody of [the child]
such that they each presumably have a close relationship with [him], means
that neither needs [him] to use his or her name alone to support a connection
to him.”
Laura contends that it is in her son’s best interest to incorporate her
surname into his surname because the hyphenated surname will facilitate
the child’s identification as part of her family unit and will thereby avert
potential confusion if she has to pick him up in an emergency. Laura did not
offer evidence of any such confusion having arisen in the past. She did submit
two forms that Paul had filled out in May 2019 for a summer camp the minor
attended.
On the “Identification and Emergency Information” form Paul put
Jamie’s name on a line designated for “Father’s/Guardian’s/Father’s Domestic
Partner’s Name”; wrote “N/A” in the line for “Mother’s/Guardian’s/Mother’s
Domestic Partner’s Name”; and listed his own name as the “Person
Responsible for Child.” In a section at the bottom of the form titled “Names of
Persons Authorized to Take Child From the Facility,” Paul listed himself as
“Father”; Jamie as “Stepmother”; Jamie’s mother as “Stepmother’s parent”;
Paul’s parents as “Grandparents”; and Laura as “Mother.”
5
On the “Enrollment Agreement” form, Paul gave his name and contact
information in the “Primary Contact and Release Person” section. In the
“Emergency Contact and Release Persons” section, he listed Jamie (labeled
“Mother, step”), his mother, and Jamie’s mother as the persons “authorized to
pick up your child if there is a medical or other emergency and you cannot be
reached.” He did not list Laura on the form. In response to Laura’s RFO, Paul
contended that he had filled out the form as he did because on his custodial
days Laura works in Boston, and she has no family in the Bay Area.
Laura does not contend that this form caused any confusion as to
whether she or Jamie is the boy’s mother, nor does she contend that she was
likely to pick up her son from summer camp in the Bay Area while she was
working in Boston. Nonetheless, she argued below that Paul’s failure to list
her as an emergency contact is troubling. Paul responded to the RFO by
acknowledging the propriety of including the names of both parents on all
forms, using their son’s full name (including “Serwer” as his middle name),
and listing one another as the first or second emergency contact and
authorized pickup. The court included these provisions in its order.
As is evident, there is little in the record that emphatically commands a
conclusion one way or the other as to whether the name change is in the boy’s
best interest. On one hand is the proposition that Paul cites from Donald J. v.
Evna M. (1978) 81 Cal.App.3d 929, that “[w]here a child has used a particular
surname for a substantial period of time without objection by either natural
parent, the court, upon petition of one [parent] . . . , should exercise its power
to change the child’s surname reluctantly, and only where the substantial
welfare of the child requires the change.” (Id. at p. 937.)1 On the other hand is
1Justice Mosk cited Donald J. v. Evna M., supra, 81 Cal.App.3d 929,
937 in his concurring opinion in Schiffman. (Schiffman, supra, 28 Cal.3d at
6
the deference owed to the judgment of the trial court, whose decision must be
upheld if supported by substantial evidence. (In re Marriage of McManamy &
Templeton (1993) 14 Cal.App.4th 607, 610; In re Marriage of Douglass (1988)
205 Cal.App.3d 1046, 1055.)
The minor was six years of age when this matter was before the trial
court. While he was not an infant unaware of his name, neither had he
acquired a reputation in school, business, or any other context associated with
his given name. He unquestionably would be aware of the change, but there is
no evidence that the change is or is not likely to cause distress to the minor,
much less stress of lasting significance. Nor is there evidence that the name
change is necessary to avoid stress or other adverse impacts to the minor.
Nonetheless, there is no basis to reject the trial court’s implicit finding
that including Laura’s surname as part of her son’s surname may further
avert confusion or minimize delay if she needs to pick him up from school or
from a care provider. The shared surname will in all events make her
connection to her son immediately clear to any caregiver or temporary
custodian. And, as in Schiffman, supra, 28 Cal.3d at page 647, the
hyphenated surname will further “the identification of the child as part of a
family unit” with her. His “friends, neighbors, teachers, acquaintances, and
family indeed may associate” him with his mother’s surname.
p. 650 (conc. opn. of Mosk, J.).) Justice Mosk urged the adoption of a
“presumption that the custodial parent is acting in the child’s best interest
when selecting his [or her] name” at birth—a presumption that would
thereafter “maintain the status quo, unless a showing can be made that the
child’s welfare would thereby be harmed.” (Ibid.) The majority in Schiffman
did not adopt this presumption, instead holding that “the sole consideration
when parents contest a surname should be the child’s best interest.”
(28 Cal.3d at p. 647.) Accordingly, this court is not free to accept Paul’s
alternative argument that we should resolve this appeal by adopting and
applying such a presumption.
7
Paul contends that accepting Laura’s position amounts to adopting a
rule that “any divorced parent [can] obtain a hyphenated [sur]name” upon
request, obviating the best-interest-of-the-child inquiry mandated by
Schiffman. But while the factor on which Laura relies may always support a
request for a hyphenated name, recognizing the benefit of better
identification with the mother’s family does not preclude consideration of
countervailing concerns. In this case, Paul failed to counter Laura’s showing
that a name change will afford the identification benefits noted in Schiffman
with any evidence that such a change will have any detrimental effect.
In sum, although the question is by no means free from doubt, we
conclude that sufficient evidence supports the trial court’s finding that the
change in surname is in the best interests of the child.
Disposition
The order is affirmed.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
BROWN, J.
8