Paul Emma v. Jessica Evans (070071) , 215 N.J. 197 ( 2013 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Paul Emma v. Jessica Evans (A-112-11) (070071)
Argued March 12, 2013 -- Decided August 12, 2013
LaVECCHIA, J., writing for a unanimous Court.
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.
Jessica Evans and Paul Emma were married in 1999. During their marriage, they had two children, the first
born on January 11, 2006, and the second born on November 6, 2007. At birth, the children were given their
father’s surname, Emma. In 2010, Jessica and Paul were divorced. The judgment of divorce incorporated a
property settlement agreement in which they agreed to joint legal custody with Jessica as the primary
residential/physical custodian.
Within months of the divorce, Paul discovered that Jessica had modified the children’s surname from
Emma to Evans-Emma on school and health-care records. He filed a motion seeking an order to prevent the use of
the name Evans-Emma. Jessica 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 this Court’s decision in
Gubernat v. Deremer, 140 N.J. 120 (1995), 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 the trial court’s ruling 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. Emma v. Evans, 424 N.J. Super. 36 (2012). The panel concluded that the question was one of
first impression and was not governed by this 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. 210 N.J. 217 (2012).
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.
1. 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. New Jersey courts have applied Gubernat’s
standards in situations that deviated from Gubernat’s facts with varying results. The Appellate Division has issued
opinions that conflict with respect to whether a rebuttable presumption in favor of the primary custodial parent is
required in renaming disputes between divorced persons who were married when they named their children. The
Court resolves that question in this appeal. (pp. 10-19)
2. The Court gleans from Gubernat a thematic 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 obvious universal assistance. However, a strong presumption is not so
obviously of assistance in ensuring that resolution of child renaming disputes are child-centric in their application of
a best-interests-of-the-child test. 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. (pp. 19-24)
3. 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. (pp. 24-27)
4. With modern life giving rise to so many varied relationship settings into which a child may be born, 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-
upon 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. (pp. 27-31)
5. 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. Each case should be weighed on its merits. 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. (pp. 31-34)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED
to the Chancery Division for further proceedings.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, HOENS and PATTERSON; and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-112 September Term 2011
070071
PAUL EMMA,
Plaintiff-Respondent,
v.
JESSICA EVANS,
Defendant-Appellant.
Argued March 12, 2013 – Decided August 12, 2013
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 424 N.J. Super. 36 (2012).
Lynda M. Yamamoto argued the cause for
appellant (Jan R. Evans, attorney).
Richard F. Klineburger, III argued the cause
for respondent (Klineburger and Nussey,
attorneys; D. Ryan Nussey, on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
This appeal arises from a post-divorce dispute over the
surname given to two children by their married parents. After
the parents’ divorce was finalized in all respects, 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. When challenged, the mother filed a formal application
to modify the children’s names to her surname alone.
In the application of the best-interests-of-the-child test
in this renaming dispute, the question is whether the custodial
parent -- here, the parent of primary residence -- should be
entitled to the presumption that her renaming decision is in the
children’s best interests. We hold that the best-interests-of-
the-child test, informed by factors identified herein, should be
applied in this renaming dispute without the heavy tilt of a
presumption in favor of the custodial parent’s decision to
change the jointly given surname of these children. In applying
the best-interests test in this matter, the party seeking to
alter the status quo from the surname jointly given to the
children at birth must bear the burden of proving by a
preponderance of the evidence that the change in the children’s
surname is in their best interests.
I.
Jessica Evans and Paul Emma were married on August 20,
1999. During their union, Jessica and Paul had two children,
the first born on January 11, 2006, and the second born on
November 6, 2007. At birth, the children were given their
father’s surname, Emma.
In 2008, Jessica and Paul separated, and on January 21,
2010, their divorce was finalized in a judgment of divorce. The
2
judgment incorporated a property settlement agreement (PSA) in
which Jessica and Paul agreed to exercise joint legal custody of
their two children. The PSA designated Jessica as “the primary
residential/physical custodian” and Paul as “the alternate
residential parent.” The PSA, which detailed an agreed-upon
parenting schedule, allowed the children to reside with Paul on
alternating weekends and to visit with him overnight every
Thursday night to Friday morning and four hours every Tuesday
morning. The PSA was silent with respect to any change to the
children’s surname. Jessica resumed the use of her birth name,
Evans, after the divorce, pursuant to N.J.S.A. 2A:34-21.
Within months of the divorce’s conclusion, Paul discovered
that Jessica had modified their children’s surname from Emma to
Evans-Emma on health-care and school records. On September 29,
2010, Paul filed a motion seeking an alteration to the parenting
schedule alleging that, relevant to this appeal, Jessica
unilaterally attempted to change their children’s surname. In
his prayer for relief, he requested an order preventing the use
of the name Evans-Emma. In response to Paul’s motion, Jessica
filed a cross-motion seeking to change their children’s surname
from Emma to Evans.
On December 3, 2010, the trial court entered orders denying
Paul’s request to have the children use the name Emma instead of
Evans-Emma and granting Jessica’s cross-motion to change the
3
children’s legal surname from Emma to Evans. Relying on this
Court’s decision in Gubernat v. Deremer, 140 N.J. 120 (1995),
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.
The trial court disagreed with Paul’s argument that such a
presumption only applied to children born out of wedlock. It
also rejected Paul’s arguments that the children’s surname
should not be changed because the children would be embarrassed
by a mid-school-year name change, that both parties have family
in the area who spend time with the children, and that the name
change had confused their elder child. Reasoning that the
children had not used “the paternal surname for very long” and
that the children were young enough to avoid “future anxiety,
embarrassment, and discomfort” as a result of a name change, the
court concluded that Paul had not “overcome the strong
presumption in favor of the surname chosen by the custodial
parent.”
On appeal, the Appellate Division reversed the trial
court’s ruling 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.” Emma v.
Evans, 424 N.J. Super. 36, 37 (2012). In a thoughtful opinion
4
authored by Judge Fisher, the panel provided six reasons in
support of that conclusion.
First, the panel rejected the notion that a presumption in
favor of a custodial parent applies to children named at birth
by married parents. Id. at 41. The panel reasoned that this
Court’s repeated statement that the best-interests-of-the-child
standard applies, regardless of whether a child is born to
married or unmarried parents, did not also “encompass[] an
intent to apply a presumption in favor of the” primary custodial
parent’s choice of surname in naming disputes. Ibid. (citing
Gubernat, supra, 140 N.J. at 139; Ronan v. Adely, 182 N.J. 103,
108 (2004)). The panel concluded that the question was one of
first impression and that the result in this case was not
governed by either Gubernat or Ronan. Ibid.Second, 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. Id. at 42-43 (citing cases).
Further, the panel observed that a majority of jurisdictions
rejected such a presumption “even when the child was born [to
parents] out of wedlock.” Id. at 43 (citing cases).
Next, the panel expressed concern that, contrary to the
Court’s intent when it established a presumption in Gubernat,
applying a presumption in favor of the primary custodial
5
parent’s name in resolving renaming disputes such as this one
would skew away from gender neutrality. Id. at 43-44 (noting
United States Census Bureau data showing that 82.2 percent of
“custodial parents” are mothers). The panel also found that
presumption to be less logical or fair when applied to children
born into a marital relationship, with the likely intent that
the surname jointly chosen was to be permanent, than it was in
the non-intact relationship into which the child in Gubernat was
born. Id. at 44-45.
In addition, the panel posited that a presumption in favor
of the primary custodial parent’s choice of names would create a
“bargaining chip in divorce negotiations,” explaining that
parents who are concerned about the possibility of a future
surname dispute may be more inclined to litigate over custody
and parenting time. Ibid.
Finally, the panel gave greatest weight to the fact that
Jessica and Paul agreed to joint legal custody, finding that the
significance of joint legal custody could not be overstated
because it requires parents to share the responsibility of
making major child-rearing decisions. Ibid. In the panel’s
view, the decision to change a child’s name was a “significant
matter” that required, at minimum, an attempt to agree. Ibid.
Thus, “neither [parent] possessed a superior right in such an
important matter.” Id. at 46.
6
Consequently, 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. Ibid. Jessica filed a petition for
certification with this Court, which was granted. 210 N.J. 217(2012).
II.
A.
Jessica’s petition asserts that the Appellate Division
erred in holding that the presumption in favor of a primary
custodial parent’s choice of names does not apply to naming
disputes involving children born during a marriage. She argues
that Gubernat directly applies to the facts of this case.
Further, she contends that the panel’s holding results in
discrimination based on marital status. She contends that the
panel’s reliance on a single census data point leads to an
overly broad conclusion that a presumption in favor of the
primary custodial parent would result in a bias in favor of
maternal surnames. And, she asserts that reliance on cases from
other jurisdictions is misguided because most of those cases
predate Gubernat and some include what she characterizes as
paternalistic language inconsistent with this Court’s gender-
neutral preference.
7
Jessica also maintains that the panel’s concern regarding
custody and parenting time becoming a “bargaining chip” if it
carries the possibility of a presumption in favor of a
subsequent name change is misplaced because disputes over such
matters already are commonplace. She similarly contends that
the panel’s reliance on the joint legal custody between the
parents in this matter also is misplaced, maintaining that the
status has no bearing on the best-interests-of-the-child
standard for naming disputes.
In place of the panel’s reasoning, Jessica advocates
following the logic of the differing appellate decision in
Holst-Knudsen v. Mikisch, 424 N.J. Super. 590, 601 (App. Div.
2012). Holst-Knudsen was published shortly after the Appellate
Division’s opinion in Emma and held that Gubernat and Ronan
require courts to extend a rebuttable presumption in favor of
the primary custodial parent regardless of whether a child was
born to married or unmarried parents. Jessica contends that the
Emma panel’s conclusion results in divorced parents not having
access to a rule of law that provides a strong presumption to
know what is in their children’s best interests. Thus, she
argues, the logic of the Appellate Division’s opinion leads to
the absurd distinction that only children born out of wedlock
have primary custodial parents who can be trusted to make
decisions in the children’s best interests.
8
B.
Paul urges the Court to affirm the decision of the
Appellate Division and remand the matter for a hearing without
applying a presumption in favor of Jessica’s choice of surname.
In large part, he maintains that the Appellate Division’s
opinion was soundly reasoned and relies on it to support his
position. With respect to the decision in Holst-Knudsen, Paul
notes that the appellate panel in that matter expressly left
open the possibility that this Court may wish to conclude that
divorcing parents who enter into an agreement addressing custody
and parenting time should be on equal footing in later naming
disputes when those agreements do not address the children’s
name. Id. at 599-600.
Paul also disputes Jessica’s argument that the Appellate
Division’s opinion leads to an absurd distinction. He asserts
that the great number of other jurisdictions that have declined
to apply a presumption in favor of the custodial parent supports
the soundness of not applying such a presumption in post-divorce
renaming disputes. Moreover, he contends that nothing in the
panel’s decision implies that children born during a marriage
will be treated less favorably than children born to unmarried
parents when the best-interests test is applied without a
presumption in favor of a parent of primary residence, and that
9
the appellate court’s decision promotes the gender-neutral
approach favored by this Court.
III.
A.
Our review of New Jersey jurisprudence governing name-
change disputes must begin with Gubernat, supra, 140 N.J. 120.
In that case, a unanimous Court rejected six hundred years of
paternalistic naming preferences in Western culture, concluding
that “full legal equality for women” was “incompatible with
continued recognition of a presumption that children must bear
their father’s surname.” Id. at 122-23. Writing for the Court,
Justice Stein concluded “that in contested cases the surname
selected by the custodial parent –- the parent primarily charged
with making custodial decisions in the child’s best interest –-
shall be presumed to be consistent with that child’s best
interests, a presumption rebuttable by evidence that a different
surname would better serve those interests.” Id. at 123. From
that statement emerges the core of the dispute before us today.
To better understand that holding, however, it is important to
place the dispute in that case in context.
The child at the center of the dispute in Gubernat was born
to unmarried parents who were not in an intact relationship.
Ibid. The child’s biological father initially denied paternity
and was not listed on the child’s birth certificate. Ibid. At
10
the time of the child’s birth, the mother gave the child her
surname, id. at 122, and only after the father’s paternity
legally was established and acknowledged did the father seek an
order changing the child’s surname as a part of a visitation and
custody dispute, id. at 123-24. The trial court granted the
name change, concluding “that the child’s interests would not be
served by retaining the maternal surname, which could represent
to the child a rejection by his father.” Id. at 126. This
Court plainly rejected that conclusion.
In an opinion that comprehensively reviewed the history of
naming practices, id. at 126-38, our Court made clear the
preference in this state to end those paternalistic preferences,
id. at 139 (“The Legislature clearly has ended gender-based
differences in marital and parental rights, whether rooted in
law or custom, and instead determined that parental disputes
about children should be resolved in accordance with each
child’s best interests.”). We noted that the New Jersey
Parentage Act (the Act), N.J.S.A. 9:17-35 to -59, was “‘intended
to establish the principle that regardless of marital status,
all children and parents have equal rights with respect to each
other.’” Id. at 137-38 (quoting S. 888 (Assembly Judiciary,
Law, Public Safety and Defense Comm. Statement to Senate No.
888), 200th Leg., 2d Sess. at 1 (N.J. Oct. 7, 1982) [hereinafter
Committee’s Statement to Senate No. 888]). The Act also aimed
11
to “eliminate[] legal differences between children born in a
marriage and children born out of wedlock,” id. at 138 (noting
that line of United States Supreme Court cases “‘mandate[ed]
equal[] treatment between legitimate and illegitimate children’”
(quoting Committee’s Statement to Senate No. 888, supra, at 1)),
and to ensure that “claims of the natural father and the natural
mother are entitled to equal weight, i.e., one is not preferred
over the other solely because he or she is the father or the
mother,” ibid. (quoting In re Baby M, 109 N.J. 396, 453 (1988)).
Furthermore, the Legislature amended custody laws so that when a
marriage ends, “the public policy of this State is to assure
that minor children are in frequent contact with, and cared for,
by the non-custodial, as well as the custodial, parent.” Ibid.(citing L. 1990, c. 26, § 2 (codified at N.J.S.A. 9:2-4)).
In Gubernat, we concluded that the appropriate standard
governing naming disputes, “regardless of the child’s birth
status,” is the best-interests-of-the-child standard. Id. at
139. Moreover, we added that the best-interests-of-the-child
standard in naming disputes should not give greater weight to a
father’s preference, thus ensuring a “standard free of gender-
based notions of parental rights.” Id. at 141. That is, the
child’s best interests should not be “synonymous with the
father’s best interest,” and “[t]he preservation of the paternal
bond is not and should not be dependent on the retention of the
12
paternal surname; nor is the paternal surname an indispensable
element of the relationship between father and child.” Id. at
140-41 (rejecting “preference that some courts accord to
paternal surnames in the context of determining the best
interests of the child”). Further, we delineated certain
factors to be considered in a best-interests-of-the-child
analysis in a naming dispute:
[T]he length of time that the child has used
one surname, the identification of the child
as a member or part of a family unit, the
potential anxiety, embarrassment, or
discomfort the child might experience if the
child bears a surname different from the
custodial parent, and any preferences the
child might express, assuming the child
possesses sufficient maturity to express a
relevant preference.
[Id. at 141 (citations omitted).]
Because we recognized that difficulty could arise in
applying those factors, we 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. Id. at
142. The reasoning for embracing that presumption was that
custodial parents presumably act in the child’s best interest
and that the parent “having physical custody of the child is
generally accorded broad responsibility in making daily child-
rearing decisions.” Ibid.
13
In support of that approach, the Court noted that a
presumption in favor of the name chosen by the custodial parent
was not novel. Id. at 142-43 (discussing several court
decisions and commentators who favor application of custodial
parent presumption). Further, the Court noted that “[s]ome
states have adopted statutes or regulations that delegate the
choice of the surname to the custodial parent.” Id. at 143.
For example, Kentucky law “provides that if the mother was not
married at the time of conception or birth of the child, and
there is no agreement between the father and mother concerning
the surname to be assumed by the child, ‘the child’s surname
shall be determined by the parent with legal custody of the
child.’” Id. at 143-44 (quoting Ky. Rev. Stat. Ann. §
213.046(8)(a) (Michie 1994) (current version at § 231.046(10)(a)
(2000)). Pennsylvania takes a similar approach: “‘[i]f the
parents are divorced or separated at the time of the child’s
birth, the choice of surname rests with the parent who has
custody of the newborn child,” id. at 144 (quoting 28 Pa. Code §
1.7(b) (1975)), and New Hampshire “mirror[ed] the Pennsylvania
provision,” ibid. (citing N.H. Rev. Stat. Ann. § 126:6-a(I)(a)
(1993) (repealed and modified 2003)).
The Court also explained that a New Jersey law addressing
name designation on birth certificates to be accepted for filing
with registrars, see N.J.S.A. 26:8-26, contains a similar
14
provision. “[I]f either parent is unavailable, the choice of
name is to be made by the custodial parent.” Ibid. (citing
N.J.A.C. 8:2-1.3(a)(1)). On the other hand, “[i]f both parents
have custody but disagree on the name, the child shall be given
a hyphenated surname based on alphabetical order.” Ibid.(citing N.J.A.C. 8:2-1.3(a)(2)). Thus, we concluded that
adoption of “a strong presumption in favor of the surname chosen
by the custodial parent” was appropriate because of the “firmly
grounded . . . judicial and legislative recognition that the
custodial parent will act in the best interest of the child.”
Ibid.That said, Gubernat cautioned that the presumption in favor
of the custodial parent should not be irrefutable, id. at 145,
and provided examples illustrative of situations that could
rebut the presumption favoring a custodial parent’s surname
choice, id. at 144-45. Gubernat placed the burden, by a
preponderance of the evidence, on the non-custodial parent
challenging the custodial parent’s surname choice to show that
the “chosen surname is not in the best interests of the child,”
despite the presumption in favor of the custodial parent’s
choice of surname. Id. at 145. Further, the Court stressed
that judicial review of such decisions should take care to avoid
giving any weight to unsupported evidence or “impermissible
gender preferences.” Ibid.15
B.
From that starting point to modern child-naming law, our
state’s courts have applied Gubernat’s standards in situations
that deviated from Gubernat’s facts with varying results.
In J.S. v. D.M., 285 N.J. Super. 498, 499 (App. Div. 1995),
a child was born to parents involved in a short-term
relationship, and at birth, the child was given the mother’s
surname. “A final domestic violence restraining order was
issued against the father,” and as part of that litigation, the
father moved for custody of the child and to have the child’s
surname changed to the father’s surname. Ibid. The trial court
ordered the child’s middle name to be changed to the father’s
surname. Ibid. The father appealed, arguing that the trial
court erred in denying his motion to change the child’s surname.
Ibid. The Appellate Division affirmed the denial of the
father’s application, concluding that the father failed to rebut
the strong presumption in favor of the child retaining the
mother’s surname. Id. at 500.
In Staradumsky v. Romanowski, 300 N.J. Super. 618 (App.
Div.), certif. denied, 151 N.J. 467 (1997), the court similarly
applied the Gubernat standard but reached a different result.
There, the child was born to unmarried parents and given the
paternal surname, and the child’s entire name was particularly
connected to the father’s familial background. Id. at 619.
16
When the relationship ended, the parents were granted joint
legal custody, with the mother as the primary custodial parent.
Ibid. The mother then filed a motion to change the child’s
entire name –- not just his surname –- which was granted by the
trial court. Id. at 620. On appeal, the panel found that the
father had failed to rebut the strong presumption in favor of
the primary caretaker, but it concluded that the total name
change failed to consider the connection that the child shared
with both families. Id. at 621. Thus, the panel ordered the
child’s middle name to be changed to the child’s originally
chosen first name, which also was a version of the father’s
first name. Ibid. The panel viewed this as a “fair solution”
to prevent complete erasure of the child’s connection with his
father’s family. Ibid.
More recently, in Ronan, supra, this Court addressed a name
change dispute between parents who were not married at the time
of the child’s birth but who gave the child the father’s
surname, Adley. 182 N.J. at 104-05. After the parents’
relationship ended, they were awarded joint legal custody, and
the mother was named the primary caretaker. Id. at 105.
Approximately one year after the separation, as part of a
parenting time dispute, the mother requested a name change to
include the child’s use of both parents’ names. Ibid. The
trial court denied the motion, and the Appellate Division
17
affirmed; however, this Court reversed and remanded. Id. at
104.
In that dispute, where the mother sought to have the child
use a hyphenated version of both parents’ names (continuing the
child’s original surname first and adding on the mother’s
surname to become Adley-Ronan), our Court expressed its belief
that the hyphenated approach “would be consistent with the
public policy expressed in the regulations issued by the New
Jersey State Department of Health for resolving disagreements
concerning the selection of a surname at birth.” Id. at 111
(citing N.J.A.C. 8:2-1.3(a)(2)). Ultimately, however, the
matter was remanded for reexamination of the best-interests-of-
the-child analysis, noting that the courts that had considered
the matter had failed to apply a rebuttable “presumption in
favor of the primary caretaker that the name selected is in the
best interests of the child,” id. at 111-12, which, we stated,
“applies whether the child is born in or out of wedlock,” id. at
108. At that time, we did not engage in an extended
reexamination of the propriety of the presumption’s use in the
wide range of settings for disputes that involve renaming of
children from the surname originally jointly given to children
by their parents at birth, including one such as is presented in
this renaming dispute, post-divorce, where the children’s
18
surname is sought to be changed (from Emma to, first, Evans-Emma
and then to Evans).
Following Ronan, the Appellate Division issued two opinions
that conflict with respect to whether a rebuttable presumption
in favor of the primary custodial parent is required in renaming
disputes between divorced persons who were married when they
named their children. Compare Emma, supra, 424 N.J. Super. at
48 (concluding that no presumption applied in favor of custodial
parent in dispute between parents married when children were
born), with Holst-Knudsen, supra, 424 N.J. Super. at 601(concluding that presumption applied in favor of custodial
parent in dispute between parents who were married when children
were born).
Our task in this appeal is to resolve that precise question
and, in the process, bring greater clarity to the usefulness of
a presumption in disputes involving the changing of a child’s
surname from that which the child was given at birth.
IV.
A name change is a significant event for a child, even for
very young children. A name originally given to a child carries
great personal significance:
The importance of names in society is of
ancient origin. . . . Elsdon C. Smith in The
Story of Our Names (1930) observed that
except to the most intimate friends a
person’s name is the most prominent feature.
19
It is also the most vulnerable point. An
old Roman maxim runs, ‘Sine nomine homo non
est’ (without a name a person is nothing).
One’s name is a signboard to the world. It
is one of the most permanent of possessions;
it remains when everything else is lost; it
is owned by those who possess nothing else.
A name is the only efficient means to
describe someone to contemporaries and to
posterity. When one dies it is the only
part that lives on in the world.
[In re Willhite, 706 N.E.2d 778, 780 (Ohio
1999) (internal quotation and citation
omitted).]
Scholarly study has explored the interest that a child has in
his or her name. Lisa Kelly, Divining the Deep and Inscrutable:
Toward a Gender-Neutral, Child-Centered Approach to Child Name
Change Proceedings, 99 W. Va. L. Rev. 1, 59-60 (1996). For
example, citing work done by a structural-linguistic
psychoanalyst on how names are a “unique form of linguistics
linked to human identity formation,” id. at 59, Kelly notes that
a child is “placed through his or her name within the social web
of family and community. A child’s identity[,] which attaches
through his or her name, then, attributes to him or her
important social information –- kinship, ethnicity, religion and
race,” id. at 60.
Names not only have religious and ethnic meaning and
implications that impart knowledge and understanding of one’s
self but also have roots in basic human rights. See id. at 62-
63 (noting “Judeo-Christian view that names are a basic part of
20
human identity” and that United Nations Declaration of Rights of
the Child of 1959 “declared that the right of a child to a name
is fundamental”). Research has shown that “in the real lives of
young children names and identity formation are knit together.”
Id. at 63. Thus, under any approach to naming, the importance
to a child of his or her name cannot be understated. At bottom,
“learning one’s name is an important part of the identity
formation process, whether that identity is in flux or
permanent, public or private.” Ibid.Accepting the importance of a name given to a child, even a
very young child in the process of forming his or her identity
through the elemental process of learning his or her name, the
decision to alter a child’s name is, as noted, a significant
moment in a young life. The decision to alter a child’s name
has been viewed in various ways by different participants in a
name-changing process. For example, some fathers have viewed
the right to have a child bear his name as a quid pro quo in
exchange for support of the child, id. at 52-53, thus turning
the surname that a child bears into a bargaining chip between
warring parents. Fathers also have argued for a “protectable
interest” in having a child bear the paternal surname to
preserve the paternal lineage. See, e.g., Pizziconi v.
Yarbrough, 868 P.2d 1005, 1007-09 (Ariz. Ct. App. 1993). In
other instances, courts have raised the specter of a surname
21
change attenuating the relationship between the child and a
former spouse. See, e.g., Leadingham v. Smith, 56 S.W.3d 420,
425 (Ky. Ct. App. 2001).
However, as the Court held in Gubernat, supra, a name
change must be viewed from the perspective of the child’s
interests in having his or her name changed, hence our selection
of a best-interests-of-the-child test. 140 N.J. at 139.
Further, we applied the best-interests-of-the-child standard
“free of gender-based notions of parental rights” and thus
eliminated any preference that a court might accord to paternal
surnames in the context of determining the child’s best
interests. Id. at 141. At its core, the Gubernat Court was
convinced that courts should perform a gender-neutral evaluation
of a child’s best interests when called on to assess the
relative benefits and detriments in choosing between a maternal
or paternal surname, and it sought to identify criteria for use
in that determination. Ibid. The Court’s criteria hew to the
criteria that have wide acceptance in the best-interests
analysis.
The vast majority of factors used by courts when evaluating
the best interests of the child in a naming dispute have been
drawn from the Uniform Parentage Act (1973). See Kelly, supra,
at 57. Ultimately, the factors can be broken down into general
categories:
22
1) the child’s wishes;
2) the child’s identity;
3) the effect of the name on the child’s
relationship with others, including
community and various family units;
4) the effect on the child’s property
interests;
5) the effect of the name change on the
parents;
6) parental misconduct; and
7) motivations underlying the name change.
[Id. at 59.]
As is demonstrated by those categories, some factors are
child-centric, such as giving consideration to the child’s
wishes or sense of identity. Other factors, such as the effect
of the name change on the parents, are less child-centered. Not
all factors will be relevant in every case, and some factors
overlap with others. Id. at 58-59. In our view, what is most
important about the use of these generally recognized factors in
these fact-sensitive cases is that the overall impact of the
test be child-centered.
V.
It is with that emphasis in mind that we consider the use
of a presumption in connection with a naming dispute relating to
a child already named by both parents. Specifically, we examine
whether the best-interests test is well-served by continuing a
presumption in favor of a primary custodial parent, see
Gubernat, supra, 140 N.J. at 123, 141, in renaming disputes that
23
involve a change in a child’s surname from that which was
originally jointly selected by the parents at birth.
In our revisiting of Gubernat in this decision, we cannot
add to the opinion’s learned recitation of the history of
Western culture’s naming practices. However, we glean from
Gubernat a thematic insistence on avoiding paternalistic
preferences and ensuring a gender-neutral approach to child-
naming decisions when such disputes require judicial resolution.
For those purposes, a strong presumption in favor of the
custodial parent’s naming decision was of obvious universal
assistance.
However, a strong presumption is not so obviously of
assistance in ensuring that resolution of child renaming
disputes are child-centric in their application of a best-
interests-of-the-child test. While gender neutrality is, no
doubt, an important public policy in resolving naming disputes
between mothers and fathers in dispute over the name to be given
at birth, a dispute over the renaming of a child’s surname
occurring after parents jointly named their child should remain
firmly fixed on the child’s best interests.
A.
To the extent that special knowledge about the child
affected by the name change is important in the best-interests
analysis, the view of the custodial parent certainly is relevant
24
and a factor that must be considered. The custodial parent’s
choice of surname, be it to retain the surname already given in
defense to another’s attempt to alter a surname post-divorce, or
affirmatively to change it, is an important fact to be
considered in the best-interests test.
So too are the views of others who can demonstrate relevant
knowledge about the impact of a proposed surname change on a
child, such as the non-primary custodial parent who also has
developed a relationship with the child, or a teacher or other
adult with a close relationship with the child. The custodial
parent, while enjoying an intimate living relationship with the
child, does not have the sole relevant information on the
subject. Moreover, in a post-divorce setting, and absent an
agreement between two parents sharing joint legal custody, it is
far from clear that the custodial parent should be entitled to a
presumption in connection with a rigorous application of a best-
interests analysis to a request to change a child’s surname.
With respect to the presumption in favor of the custodial
parent that was adopted in Gubernat, while it made compelling
sense in the setting in which it arose, its continued use
arguably can shrink the best-interests analysis to an automatic
endorsement of the primary custodial parent’s choice in a
renaming dispute. A primary custodial parent’s choice is an
25
insufficient reason in and of itself to support a change in a
child’s surname.
When it comes to changing a surname jointly given to a
child at birth, the use of the Gubernat presumption favoring a
custodial parent operates on a premise of superior knowledge
about the child’s best interests. A change in a 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. A surname change for a child in such circumstances
deserves a searching inquiry into the child’s best interests.
It is not a step to be taken based on whim or preference. A
child’s name ought not to be changed except on good and
sufficient reason -- the importance of a child’s name, as
discussed above -– requires as much. Thus, a custodial parent,
or any other party seeking to change a child’s jointly given
birth surname, must satisfy the best-interests test.
Over the years since it was announced, the Gubernat
presumption has been extended beyond its original setting where
it served the clear purpose of ensuring that paternalistic
preferences in originally choosing a child’s surname were
abandoned and were prevented from being insinuated into the
application of the best-interests-of-the-child standard if a
unilaterally selected surname was later challenged. Expanded
use of the presumption has raised issues prominently now in
26
post-divorce and other settings where the name change dispute
arises after the surname originally was selected jointly by the
parents of a child. We fail to see the appropriateness of any
form of presumption in such settings. Further, the
inappropriateness of a presumption in the application of the
best-interests test is even sharper in the context of parents
who share joint legal custody of their children.
As the appellate panel in this case rightly pointed out,
joint legal custody requires parents “to share ‘authority and
responsibility for making “major” decisions’ regarding the
welfare of the children, calling upon ‘both parents to remain
decision-makers in the lives of their children.’” Emma, supra,
424 N.J. Super. at 45 (quoting Beck v. Beck, 86 N.J. 480, 487
(1981)). The decision to change a child’s name surely
constitutes a major decision. Consequently, the decision of
whether to change a child’s name falls to the joint custodians
to make an attempt to agree on whether to change a child’s name.
Then, absent the ability to forge an agreement, the dispute may
be brought to the courts. However, because joint legal
custodians start with a responsibility to make decisions
together, so too should they start in the court system with
equal rights –- without either party benefiting from a
presumption in favor of his or her choice of names.
B.
27
As originally noted in Gubernat, supra, the Legislature
strongly prefers gender-neutral approaches to settling parenting
disputes. 140 N.J. at 138-39. Further, our public policy
favors elimination of legal differences between children born to
married and unmarried couples; the claims of both natural
parents should be accorded equal weight. See id. at 137-38
(citing Committee’s Statement to Senate Bill No. 888, supra, at
1); Baby M, supra, 109 N.J. at 453. Those two policies, clearly
demarked in 1995 at the time Gubernat was decided, retain equal
if not more importance today.
During the course of the past fifty years, our country has
“witnessed significant changes in the form and function of the
traditional family unit.” Doherty v. Wizner, 150 P.3d 456, 463-
64 (Or. Ct. App. 2006) (discussing statistical shifts in
marriage, divorce, and birth rates to unmarried couples).
Between 1970 and 2010, according to United States Census Bureau
Data, “the annual number of marriages per 1,000 unmarried adult
women” had decreased by more than fifty percent. National
Marriage Project at the University of Virginia, The State of Our
Unions: Marriage in America 2012, at 62 (Dec. 2012), available
at http://nationalmarriageproject.org/wp-
content/uploads/2012/12/SOOU2012.pdf. Although the precise
cause of that decline is open to interpretation, the conclusion
from that data remains -- fewer Americans are getting married.
28
Id. at 63-64. In addition, today’s divorce rate is nearly twice
that of 1960. Id. at 67. While the divorce rate has declined
slightly from its apex in the early-1980s, the percentage of
divorced adults has quadrupled since 1960. Id. at 68-69
(noting, according to various data sources, that adults who
marry for first time have lifetime probability of separation or
divorce between forty and fifty percent).
Adding to this new landscape of family structure is the
rise in the birth rate for unmarried women. See Joyce A. Martin
et al., U.S. Dep’t. of Health and Human Servs., 68 Nat’l Vital
Stat. Rep. 1, at 8 (Aug. 28, 2012), available at
http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_01.pdf. In
fact, between 1980 and 2010, the number of births to unmarried
couples has steadily increased. Ibid. Not only have the
numbers of children living in single households or in shared
living arrangements changed, so too have the types of
relationships that are state-sanctioned. New Jersey recognizes
civil unions between same-sex couples, N.J.S.A. 37:1-28, in
whose households children are being raised. The conclusion to
be drawn from this data is clear: the face of the modern
American family is vastly different than that of as recent a
time as the mid-Twentieth Century.
With modern life giving rise to so many varied relationship
settings into which a child may be born, we fail to see how
29
Gubernat’s interest in gender neutrality is promoted by broad
continuation of a presumption in favor of a parent of primary
residence, or “custodial parent,” when applying the best-
interest-of-the-child standard in name-change disputes that
arise after a child has been given a surname jointly by his or
her parents. Consequently, in disputes over whether a child’s
agreed-upon surname should be changed, we do not consider it
just to provide a presumption to a custodial parent’s choice of
name.
Our rejection of a presumption in such name change
circumstances applies irrespective of whether or not the parents
originally were married at the time of the child’s birth. In
that respect, the Appellate Division points to persuasive
authority from a majority of other jurisdictions. Emma, supra,
424 N.J. Super. at 42-43. An approach that grants neither
parent a preference when they agreed on a name at birth advances
the goal of gender neutrality and eliminates distinctions
between children born during marriage and children born outside
of wedlock. It nevertheless takes into account special
knowledge that a custodial parent may have as to the benefits
and detriments to the current surname and the proposed surname
in the life of the child in that parent’s custody.
In sum, while a presumption in favor of the choice of the
surname given by the custodial parent at birth was appropriate
30
under the facts presented by Gubernat, we hold that in renaming
disputes between parents who agreed on a surname at birth but
find themselves later in a dispute over whether to alter the
surname, the proper standard to apply is the best interests of
the child.1 The parents in such a dispute should be on equal
footing; neither parent should have a superior right.
Therefore, we further hold that neither parent should benefit
from a presumption in favor of his or her choice of names.
C.
When parents have agreed on a name at birth, the parent
seeking the name change in a subsequent dispute must bear the
1
The 1995 landmark decision in Gubernat shattered gender
stereotypes in naming disputes in this state by declaring that a
best-interests-of-the-child standard would apply and supersede
historic cultural expectations that a biological father could
insist that his out-of-wedlock child should presumptively bear
his surname once paternity of the child was established. The
facts of Gubernat cannot be separated from the strong
pronouncements that the opinion announced. The Court was
focused most keenly on how to settle a dispute when a parent
seeks to change the name given by the only custodial parent at
birth. 140 N.J. at 122-23. In that context, the presumption in
favor of the custodial parent established in Gubernat makes
compelling sense and that presumption should continue to be
applied to factual circumstances similar to those that arose in
Gubernat. That said, the rationale of Gubernat should not be
extended to apply to disputes that, like this, arise after a
surname was given to a child by his or her parents acting in
concert. To the exent that Holst-Knudsen holds otherwise, we do
not follow it. To the extent Ronan is read expansively to
suggest otherwise, we caution against such a reading. In Ronan,
as indicated previously, our focus was more fixed on the relief
requested and did not involve a full reexamination of the
utility of a presumption in renaming disputes such as we
squarely address in this matter.
31
burden of showing by a preponderance of the evidence that the
name change is in the child’s best interest. The best-
interests-of-the-child test applies regardless of the label
attached to the parent’s relationship at the time of the child’s
birth. Whether the parents are married, in a civil union,
unmarried, or in a short-term or long-term relationship, the
relevant starting point is whether the parents agreed on a
surname at 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. Courts should be careful to
not give weight to any interests that are unsupported by
evidence in the record. Just as importantly, courts should
avoid giving weight to any evidence stemming from gender
preferences.
Each case should be weighed on its own merits. Although we
do not attempt to enumerate all of the possible factors that may
bear on a best-interests-of-the-child analysis in these
disputes, the following factors originally enumerated in
Gubernat are valid, child-centric considerations:
1. The length of time the child has used
his or her given surname.
2. Identification of the child with a
particular family unit.
32
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.
Moreover, courts may also consider such additional factors as
the following, some of which had been identified by the Gubernat
Court as factors to be used in rebutting the custodial parent
presumption, but which now should be considered as part of the
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:
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.
11. The effect of a name change on the
relationship between the child and each
parent.
33
In conclusion, the Appellate Division correctly reversed
and remanded this matter for reevaluation without applying a
presumption in favor of the custodial parent’s naming choice.
We affirm with modification the Appellate Division’s reversal
and remand. A new proceeding is required to evaluate Jessica’s
name-change application in accordance with the aforesaid
principles applicable to the best-interests-of-the-child test.
VI.
As modified by this opinion, the judgment of the Appellate
Division is affirmed.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, HOENS and PATTERSON;
and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join
in JUSTICE LaVECCHIA’s opinion.
34
SUPREME COURT OF NEW JERSEY
NO. A-112 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
PAUL EMMA,
Plaintiff-Respondent,
v.
JESSICA EVANS,
Defendant-Appellant.
DECIDED August 12, 2013
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRMED AS
CHECKLIST MODIFIED/
REMANDED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7