Rogers v. Wright ( 2006 )

NO. 4-05-0264 Filed: 2/14/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: PEYTON GRACE WRIGHT, a Minor, ) Appeal from
TERRY M. ROGERS, ) Circuit Court of
Petitioner-Appellee, ) Edgar County
v. ) No. 05MR4
ROBIN L. WRIGHT, )
Respondent-Appellant. ) Honorable
) James R. Glenn,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Respondent, Robin L. Wright, appeals the March 2005
order that granted the petition of petitioner, Terry M. Rogers,
to change the name of the parties' daughter from Peyton Grace
Wright to Peyton Grace Rogers. We reverse.
I. BACKGROUND
On September 8, 2003, one day after Peyton's birth,
Terry signed a paternity affidavit. In this affidavit, Terry and
Robin averred their "mutual desire that the name of our child on
the original Indiana Certificate of Live Birth shall be recorded
as: Peyton Grace Wright."
Approximately four months later, on January 16, 2004,
the Edgar County circuit court, in case No. 2003-F-28, entered an
order of parentage. The order declared Peyton is the daughter of
Robin and Terry. The parties agreed and the court ordered the
parents to share joint custody and designated Robin "as the
primary custodial parent," with Terry "as the visiting parent."
The order provided for child support and visitation and resolved
other custodial matters, including tax and insurance issues. The
court expressly retained jurisdiction to modify or enforce the
terms of the order. The order referred to Peyton as Peyton Grace
Wright.
On February 18, 2005, in case No. 2005-MR-4, Terry
petitioned the court to change Peyton's name to Peyton Grace
Rogers. Robin objected to Terry's petition and filed a motion to
dismiss, in which she argued Terry, the visiting parent, lacked
standing to seek the name change. On March 7, the court held a
hearing on the petition. The court denied Robin's motion to
dismiss and granted the petition. A written order was filed on
March 22, 2005.
This appeal followed.
II. ANALYSIS
On appeal, Robin argues Terry, the visiting parent,
lacked standing to seek the name change. Robin contends section
21-102 of the Illinois Code of Civil Procedure (Code) requires a
petition to change one's name to "be signed by the person
petitioning or, in the case of minors, by the parent or guardian
having the legal custody of the minor." 735 ILCS 5/21-102 (West
2004). Robin contends, in part, when a joint-custody agreement
is in place, both parties must agree to the name change before a
name change may be granted under the Code. Otherwise, according
to Robin, the statute would read "a parent with legal custody"
may sign the petition.
Terry disagrees. He contends because he has joint
custody of Peyton, he has standing to seek the name change.
Under Illinois law, a party can seek a name change by
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more than one means. Two are relevant here. The first is under
section 21-101 of the Code, which states "[a]n order shall be
entered as to a minor only if the court finds by clear and
convincing evidence that the change is necessary to serve the
best interest of the child" and provides a list of relevant
factors to consider. 735 ILCS 5/21-101 (West 2004). Section 21-
102 further provides the petition for the name change must be
signed "by the parent or guardian having the legal custody of the
minor." 735 ILCS 5/21-102 (West 2004).
The second relevant means for seeking a name change is
through the court with jurisdiction over custodial matters.
According to our supreme court, "changing a child's name is a
matter incident to custody of the child." In re Marriage of
Presson, 102 Ill. 2d 303, 307, 465 N.E.2d 85, 87 (1984). Thus,
the court with jurisdiction over the custodial issues has
jurisdiction over a petition regarding a dispute over a name
change. See Presson, 102 Ill. 2d at 307, 465 N.E.2d at 87.
Here, the name-change petition was clearly resolved
under the first means, the Code. The case was identified as a
miscellaneous-remedies case and heard by a judge other than the
one presiding over the parentage case. In addition, the parties
before the circuit court and before this court centered their
arguments on standing to seek a petition change under the Code.
We find, however, this was not the appropriate means to
resolve the dispute between Robin and Terry. Section 21-102's
use of "the parent *** having the legal custody," implies no
custodial dispute over the name change. (Emphasis added.) 735
ILCS 5/21-102 (West 2004). The latter approach is appropriate
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for the situation that exists here, when a party with joint
custody seeks a name change over the objection of the other joint
custodian. Such a disagreement over the name change creates a
custody dispute that should be resolved by the court within the
confines of the proceeding wherein parentage was declared.
Here, the family court determined custodial matters in
a parentage action. That same court expressly reserved
jurisdiction to resolve or modify the custody order. We note the
parties agreed the child would be named Peyton Grace Wright in
2003. We also note Robin's designation within the joint custody
agreement as "the primary custodial parent." A child's name
change in this context is an important decision. See generally
750 ILCS 45/6(e) (West 2004) (authorizing the court determining
parentage to enter an order for visitation, custody, and
support). That court should resolve this issue--an issue
incident to custody.
III. CONCLUSION
Accordingly, we reverse the order granting Terry's
petition.
Reversed.
STEIGMANN and APPLETON, JJ., concur.
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