R.B. VS. A.B. (FM-02-0246-18, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0602-18T3
R.B.,
Plaintiff-Respondent,
v.
A.B.,
Defendant-Appellant.
________________________
Submitted May 2, 2019 – Decided May 20, 2019
Before Judges Whipple and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0246-18.
DiLorenzo & Rush, attorneys for appellant (Kenneth R.
Rush, of counsel and on the brief).
Guaglardi & Meliti, LLP, attorneys for respondent
(Barry S. Guaglardi, of counsel; Frances Oliveri, of
counsel and on the brief).
PER CURIAM
Defendant A.B.1 appeals from the Family Part's August 29, 2018 order
compelling her to change the parties' son's name to Gi.F.B. on his birth
certificate and social security card based upon a July 20, 2017 consent order.
The parties agreed to name the child Gi.F.B. and use plaintiff's surname prior to
his birth. Because our review of the record indicates a substantial change of
circumstances occurred after the consent order was entered, we reverse and
remand for a plenary hearing and appointment of a guardian ad litem for the
child to determine what is in his best interest as to the first, middle, and last
names he should be given.
I.
The parties were married on February 4, 2017, and separated on July 4,
2017, following a domestic violence incident. Defendant was four months
pregnant at the time. Plaintiff alleged defendant "was acting verbally violent"
during an argument and that "she attempted to run over [his] person" with her
vehicle the day prior. Plaintiff reported to police that he knocked on the driver's
side window of her vehicle in an attempt to talk to her and the "glass cracked
1
Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the
confidentiality of the participants in these proceedings.
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slightly," but he claimed the glass was already broken. Plaintiff told police
defendant drove over the grassy area of their front yard and into the road.
In a certification, plaintiff contends he saw defendant the next day, July
4, 2017, at a Rite Aid parking lot. He noticed that H.W., defendant's four-year-
old child from a previous relationship, was unattended inside the vehicle, with
the windows rolled up, when the outside temperature was ninety degrees.
Plaintiff entered the store, retrieved the car keys from defendant, and started her
car remotely to activate the air conditioning because he was concerned about
H.W.'s well-being. Later that day, defendant went to the parties' residence
"demanding" her medication2 and a divorce. She returned to her vehicle, and
according to plaintiff, "[a]gain tried to run over [him] in the driveway" and
"drove over the grass speeding away." She returned five minutes later,
"aggressively" entered the house, and began "ripping pictures off the walls,
smashing glass, throwing objects and destroying property."
This incident occurred in front of plaintiff's three minor children from a
prior relationship while H.W. was seated in defendant's car. After she refused
to leave, plaintiff asked his nine-year-old son to dial 911. Plaintiff claims
2
The record does not provide the name of the medication or what it was
prescribed for.
A-0602-18T3
3
defendant walked up the stairs and threw herself down, yelling "why did you
push me down the stairs[?]" One of plaintiff's sons allegedly stated "[d]ad did
not push you, you fell, dad is at the bottom of the stairs." Defendant got up,
punched plaintiff in the groin area, and proceeded to the family room, where she
began throwing more pictures, resulting in the issuance of a temporary
restraining order (TRO) to plaintiff. On July 19, 2017, he filed a complaint for
divorce.3
Defendant's pleadings and certification set forth a different version of
events. Following an argument on July 3, 2017, defendant verified she informed
plaintiff that she could not return to the former marital home because she was
afraid of him and she "vacated the property because plaintiff was physically and
verbally abusive" towards her. Defendant certified plaintiff is a martial arts
expert, "impose[d] his physical strength on [her] as a means of control[,]" and
choked and struck her in the past. On July 4, 2017, defendant returned to the
residence to retrieve items at a time she believed plaintiff would not be home,
but plaintiff was there, blocked her vehicle with his own, and punched her car
window with such force "that it caused a crack in the windshield." Defendant
also stated plaintiff pushed her down the stairs, and after she left the home,
3
This TRO was not provided in either parties' appendices.
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4
plaintiff repeatedly texted her and followed her, with his children in his car,
despite her requests to be left alone.
Defendant also certified that plaintiff sent her text messages degrading her
and persuading her to have an abortion, stating: "Two kids from two different
guys, divorced [] a very loose pussy and herpes. That's what you offer to
somebody"; "You're correct[,] I'm done. I actually don't like you[,] you're right.
Because you're impossible to love"; "All the clothes and shit for you and your
son will be thrown in the trash. That's where you belong"; "Deactivating the
phone throw it out if you wish"; "I'm removing you from my bank accounts.
And I'm finished with you now"; "You are nothing but a loose pussy white trash
peasant. You will be miserable with whomever you're with the rest of your life
if you can ever find someone again. No one wants you and you're not worth it."
He further stated:
You['re] psycho and nuts and I'm going to take that
baby from you. And I'm calling [your ex-boyfriend]
now[,] I'm telling him how you act so he can protect his
son. You fucked with the wrong person. Go [beg] your
parents to take you back in they probably won't either.
You will not be able to get in my house you'll hear from
my lawyer forward me an address where I can send
divorce papers.
By the way I spoke to him this morning and you're
entitled to nothing.
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On July 20, 2017, plaintiff dismissed his TRO and the parties entered a
consent order providing as follows:
1) Defendant is barred and restrained from the homes
where [p]laintiff's children reside, including
[p]laintiff's home . . . ("marital residence"), and the
home of the [plaintiff's] children['s] mother[.]
2) Defendant is barred and restrained from any
visitation, communication or involvement of any kind
with [p]laintiff's children.
3) Defendant shall have no legal rights of any kind to
the marital residence.
4) The parties shall not engage in any harassing or
disparaging communication with each other whether by
verbal, written or electronic means.
5) Defendant shall not self-inflict any harm to herself
and/or the unborn child between the parties.
6) Defendant shall maintain her health and that of the
unborn child, including but not limited to taking all
medications prescribed for her pregnancy or otherwise.
7) The parties shall undergo psychiatric evaluations and
shall continue therapy so long as recommended by such
psychiatrists or ordered by the [c]ourt.
8) Plaintiff shall have open and liberal right to attend
all pregnancy related medical visits of [d]efendant and
to ask questions and receive information from
[d]efendant's physicians at such visits with [d]efendant
present. Defendant shall provide notice to [p]laintiff
when such visits are scheduled. Defendant shall notify
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6
[p]laintiff of any complications of emergency situations
with the pregnancy.
9) Plaintiff shall be permitted to be present in the
delivery room during the birth of the parties' child.
10) The parties agree that the unborn child's name when
born will be [Gi.F.B.], unless the parties mutually agree
to change same later.
11) Plaintiff shall pay for any unreimbursed medical
expenses related to the pregnancy upon presentation of
receipts or invoices by [d]efendant without prejudice.
12) Plaintiff shall maintain [d]efendant's cellphone as
active on his plan without prejudice.
13) Defendant shall immediately change her mailing
address from the marital residence with the post office.
Plaintiff shall forward [d]efendant's mail to her at the
address she designates.
The foregoing terms shall fully resolve the pending
[TRO] entered against [d]efendant.
[(Emphasis added).]
Plaintiff was represented by Michael P. Meliti, Esq., and defendant appeared pro
se. Before approving the consent order, the judge handling the domestic
violence matter questioned defendant as follows:
[The court]: Okay. Do you understand that Mr. Meliti
does not represent your interest, he only represented
[plaintiff's] interest, correct?
[Defendant]: Yes, Your Honor.
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[The court]: Okay. You didn't rely upon him for legal
advice today, did you?
[Defendant]: No.
[The court]: Okay. Do you want to speak to an attorney
before I enter this consent order under your FM
Docket?
[Defendant]: No, Your Honor.
[The court]: FM meaning the divorce complaint?
[Defendant]: Right. No. I'm - -
[The court]: You - - You're comfortable in representing
yourself?
[Defendant]: - - I'm one hundred percent comfortable.
Thank you.
The judge found:
As to the consent order, I'm satisfied that you both have
voluntarily entered into a consent order which you . . .
both agree to be bound by. The plaintiff was
represented by counsel, is satisfied with the services of
his attorney. Defendant recognized the role of
plaintiff's attorney, is comfortable in representing
herself and was given the opportunity to speak to
counsel and has declined and is ready to be bound by
the terms of the agreement.
Prior to the child's birth in December 2017, the parties ostensibly entered
into a parenting plan, which is undated and unsigned. The parenting plan refers
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to the child as provided by the consent order, Gi.F.B., and outlined specific
instructions to follow when defendant went into labor, including hydrating her
without intravenous fluid as long as possible; lightly eating before labor; when
to administer an epidural; which medication to use upon nausea; which
medication to use upon contractions stopping or failing to start; the ability to
take a walk before labor; and who would be permitted in the delivery room. At
delivery, plaintiff would "help catch the baby" and "cut the cord[.]" In the event
defendant underwent a cesarean section, the plan provided that the baby would
be given to plaintiff as soon as he was "dried off[.]"
Plaintiff certified defendant claimed she was in pre-term labor on at least
ten occasions. Defendant was residing with her parents after the parties
separated, plaintiff alleged that she did not get along with them, they had "many
altercations" and "she would often make excuses to go to the hospital so she
would have a place to stay." On September 17, 2017, plaintiff admitted herself
to Valley Hospital because she believed childbirth was imminent. Plaintiff went
to the hospital and claims defendant "became extremely irate with [him], [and]
argued with [him] over minuscule issues[.]" Defendant "informed the hospital
that [plaintiff] was not permitted to be there with her or be in the delivery room
for the baby if she did not choose." Plaintiff was escorted out of the hospital,
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and his attorney obtained updates on defendant's condition from Valley's general
counsel.
Defendant refutes plaintiff's allegations, certified her pregnancy was high
risk, "required constant monitoring and by its very nature carried the potential
of a serious medical condition." Defendant asserts plaintiff became belligerent,
he was escorted out of the building because he was considered a danger, and he
was unable "to calm down and attempt[ed] to start arguments with hospital
staff."
On October 10, 2017, defendant sent plaintiff a text message stating she
was in labor. She met plaintiff at his home, and they drove to Holy Name
Hospital together. After learning she was not in labor, defendant asked plaintiff
to pick her up at the hospital and he acquiesced. Defendant cursed at plaintiff
when he arrived, and he reported that she called him "a piece of shit" for leaving
her at the hospital, and wanted to sleep at his home, but plaintiff denied her
request. Defendant "became irate and began screaming at [him]. She told [him]
that [he] was never going to see [their] son and she would make sure that [he]
was not at the hospital for his birth[.]" She punched him in the jaw while he
was driving, and she demanded to be let out of the car. Defendant immediately
experienced contractions again and returned to the hospital by ambulance. She
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claims plaintiff fought with her about driving to the hospital together, and he
left her at the hospital "out of spite with no means to get home[,]" and not to
retrieve belongings as he alleged. Defendant also certified plaintiff became
angry because she wanted to be driven to Morris County, where she was living.
Defendant filed a TRO 4 against plaintiff on October 11, 2017, alleging he
began to verbally berate [her] while driving in his
vehicle on Route 17 . . . . [and] called [her] a "worthless
skanky whore[,"] pulled over the to the shoulder of
Route 17 . . . and made [her] exit the vehicle on the
roadway shoulder. [He] then sped off in his vehicle,
not to return. [She] called [911] and Ridgewood police
and ambulance responded to her location and
transported [her] to Valley Hospital . . . . [She] was
advised to file a [TRO] but did not do so because she
was "afraid [he] would retaliate."
Plaintiff filed a cross-TRO against defendant on October 12, 2017. On
October 18, 2017, defendant was admitted to Valley due to a lack of fetal
movement and a decreased fetal heart rate. She informed plaintiff's counsel of
her condition, but plaintiff decided not to go to the hospital due to the pending
TROs.
Defendant filed her answer and counterclaim for divorce on December 22,
2017, alleging plaintiff was emotionally, mentally, and physically abusive
4
Plaintiff is the defendant in the October 11, 2017 TRO because she filed first.
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towards her. Defendant asserted plaintiff forcibly pulled her down the stairs of
the martial home, causing her to fall down, and he sent her messages wishing
she would die during her pregnancy. He cancelled defendant's automobile
insurance, and removed funds from the marital bank account, leaving a "near
zero" balance for her to utilize when she had no other funds available.
Plaintiff discovered defendant was disparaging him on social media. On
October 30, 2017, defendant filed an order to show cause (OTSC) seeking to bar
plaintiff from the delivery room because she was a high-risk pregnancy and four
centimeters dilated at the time. She expressed concern plaintiff "may act out
again in the hospital and create a stressful [and] unsafe labor." Plaintiff's
counsel sent defendant an email on October 20, 2017, stating plaintiff "does not
want to be present during the birth [and] does not want to be on the birth
certificate as the father." She also requested emergent monetary relief but the
judge denied her OTSC.
Defendant certified prior to the child's birth, "plaintiff did not contest
paternity[,]" and shortly before given birth, "plaintiff made clear that he did not
have an interest in parenting [their] child. He represented to [her,] through his
counsel[,] that he did not wish to be listed on the birth certificate or referenced
as the father of the child." "He further made clear that he would not attend the
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delivery and did not want the child to know his identity or that of his other
children[,]" and defendant could name the baby as she wished. Plaintiff was not
present for the child's birth and he did not sign the birth certificate. Contrary to
the consent order terms, defendant named the baby Gr.C.W., which is the name
appearing on his birth certificate and social security card, and gave him her
former surname.5
The first case management conference (CMC) in the dissolution matter
was held on February 8, 2018, and both parties were represented by counsel.
Defendant began using her former name, A.W., at this point even though an
order for name change had not been entered by the judge pendente lite. Disputed
issues listed on the CMC order included child support, alimony, equitable
distribution, life insurance, and paternity. The child's name was not designated
as an issue in contention by either party.
The parties entered into a second consent order and civil restraining order
on February 8, 2018, which prohibited them from having any direct or indirect
contact with each other, and dismissed their pending TROs. Handwriting on the
order states: "In the event that this [c]onsent [o]rder shall overlap or conflict
5
We reviewed copies of the birth certificate and social security card and
incorporate same into the record.
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with any prior orders, this [c]onsent [o]rder shall supersede any prior orders."
There is no mention of the child's name in this consent order.
A March 6, 2018 CMC order was entered and the same issues were
disputed, except that "paternity" was crossed out in the order and "name of
child" was handwritten in its place. Custody and counsel fees were also added
as disputed issues. On March 8, 2018, the parties and their son were ordered to
submit to a paternity test, and the results confirmed plaintiff was the child's
biological father. In her April 27, 2018 case information statement, defendant
listed the child's name as "Gr.C.W." At the May 1, 2018 CMC, the same issues
were in dispute, and at the June 19, 2018 CMC, the judge ordered custody
experts to be designated by July 6, 2018. Plaintiff retained Dr. Judith Greif to
serve as his custody and parenting time expert on July 6, 2018. 6 The record does
not reflect if defendant retained a custody and parenting time expert.
The judge held oral argument on plaintiff's OTSC seeking to compel
enforcement of the July 2017 consent order relative to the child's name. In an
oral opinion, the judge stated:
So the next request is that I enforce the July 20[], 2017,
consent order that explains[,] that in addition to
refusing to allow the child or him to be present in the
delivery room, [defendant] unilaterally named the child
6
Any reports generated by Dr. Greif have not been provided on appeal.
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[Gr.C.W.], as opposed to [Gi.F.B.], as agreed upon in
the July 20th consent order. . . .
We look favorably upon agreements between the
parties because they're consensual and voluntary in
nature [and] allow parents to reach accommodations,
resolve differences, and assure the stability in the
relationship that is here. The main objective of the
[c]ourts in enforcing a contractual agreement, such as a
consent order, which is not only a contractual
agreement, is an order of the [c]ourt.
It is to carry out the mutual intent of the parties. Unless
there are any legal or equitable basis for us to interfere
with agreements that are made -- which I have not read
any -- it is expected that the [c]ourt orders are going to
be followed.
The court order shows and mandates that this child is to
be named [Gi.F.B.]. I intend to sign an order that that
is to take place, unless somebody can convince me
otherwise.
....
This is a mutual agreement that these parties entered
into and they decided if this child, when this child was
born, the child was going to be called [Gi.F.B.].
....
I am not making any findings with regard to whether or
not this is an intentional violation, which would impose
sanctions under our rules, various sections of our rules.
I have a consent order. I have an order signed by the
[c]ourt. It has not been vacated. It has not been
appealed from. It is well beyond the time for filing an
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appeal. It is enforceable. It is going to be complied
with. Thank you.
The judge issued an order on August 29, 2018, stating: "[Gr.C.W.], minor
child, who was born on December [], 2017, be and is hereby authorized to
assume the name, [Gi.F.B., (the name set forth in the July 20, 2017 consent
order)], from and after August 24, 2018." An amended order was issued by the
judge on August 31, 2018, granting plaintiff supervised parenting time on
"alternate Saturdays and Sundays from 12:00 [p.m.] to 5:00 [p.m.], commencing
on August 25[], 2018, as well as "every Tuesday and Thursday, from 4:00 [p.m.]
to 7:00 [p.m.]." All drop-offs were to be conducted by plaintiff's mother at either
the Elmwood Park police department or at the child's day care center. The judge
ordered supervised parenting time be continued until plaintiff's psychiatric
evaluation was completed.
The child's medical records identify him as Gr.W., defendant's choice of
his first and last names, and there is no mention of a middle name. The only
medical document that refers to the child as Gi.F.B. is an immunization record
from the child's pediatrician dated February 28, 2019.7 This document states,
7
These records were provided upon our request. The child's pediatric records
include approximately twenty office visits and identify the child as Gr.W.
Plaintiff was listed as the informant twice and the rest of the visits were attended
by defendant.
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"[Gi.'s] last physical examination was January 9, 2019[,]" and this document
was to be attached to his school forms. An immunization record, dated January
11, 2019, has the child's name listed as Gr.W., and was also to be attached to his
school forms.
The child also had several hospital admissions and these records refer to
him as Gr.W. A discharge summary states:
Of note there is an open [Division of Child Protection
and Permanency (Division)] case. Mom and biological
dad are not together and do not have a great
relationship. Mom has full custody, however within the
last month biological dad able to see [child] couple of
hours a week. Mom reports threats from biological dad
to harm child and has concern for possible unknown
ingestion.
The July 2017 incidents resulted in the Division filing an OTSC because
it had concerns about the parties' ability to co-parent. A fact-finding hearing
was held on November 4, 2017.
On January 23, 2018, the Division judge entered an order directing
supervised parenting time between the child and defendant on a "liberal basis"
by Division approved supervisors, which included defendant's parents and sister.
With consent of plaintiff, defendant was granted sole legal and physical custody
of the child, referred to as Gr.W. in the order, which also provided:
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With consent, [plaintiff] is restrained from co-parenting
the minor [Gr.C.W.] with [defendant]. [Plaintiff]
acknowledges that the Division has identified services
deemed necessary for [the parties] to safely parent
[Gr.W.]. [Plaintiff] is declining services at this time as
he does not wish to parent the child. Should [plaintiff]
decide to exercise visitation with [Gr.W.], he shall
make an application under the FM [D]ocket on notice
to the Division.
[(Emphasis added).]
The Division amended the status of the case against plaintiff to
"established" as to two of his older sons, and plaintiff was ordered to have
supervised parenting time with all three of his children from his prior
relationship. Plaintiff certified he only agreed to relinquish custody of Gr.W.
and "resolved the action with [the Division] solely so that [his] [c]hildren would
no longer be subject to the constant home visits and interviewing by the [l]aw
[g]uardian and others involved with the Division[,]" and the only reason he
consented to defendant having sole custody of their son was to cease
involvement with the Division. He certified defendant "had made clear that she
did not want [him] to be involved in the [c]hild's life by excluding [him] from
medical visits and hospital appointments and failing to give the [c]hild [his] last
name[.]"
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Defendant argues plaintiff relinquished custody because "he had no desire
to be involved in the child's life[,]" which "was a major factor" in the Division's
decision to dismiss plaintiff from the case without completing services.
Notably, plaintiff did not participate in any recommended services, and he
waived his right to custody and parenting time of the parties' child. No appeal
was taken from this order. Throughout the Division's involvement, plaintiff did
not contest paternity, and it only became an issue in the matrimonial case after
defendant sought child support.
On appeal, defendant argues that the judge erred in enforcing the July 20,
2017 consent order relative to the child's name without performing a best interest
of the child analysis; failed to consider the substantial change of circumstances
after its entry when she became the sole custodial parent the month after his
birth based upon the Division judge's January 23, 2018 order; that plaintiff
waived his right to contest the child's name by not filing his application sooner;
and she is entitled to relief under Rule 4:50-1.
II.
A trial court's fact-finding should be generally undisturbed "when
supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 412 (1998). The appellate court gives particular deference to a trial
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judge's fact finding in a family matter because the trial court's expertise and its
"opportunity to make first-hand credibility judgments about the witnesses who
appear on the stand; it has a 'feel of the case' that can never be realized by review
of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88,
104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
293 (2007)).
A trial judge's fact-finding should only be reversed if his or her findings
are "so wholly unsupportable as to result in a denial of justice." In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship
of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). This court should not
reverse the family court's decision "when there is substantial credible evi dence
in the record to support the court's findings." E.P., 196 N.J. at 104.
In Gubernat v. Deremer, our Supreme Court held "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." 140 N.J. 120, 123
(1995). Unlike this case, the parties in Gubernat were not married, but the father
was not present at the birth, and he was not named on the child's birth certificate.
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Ibid. "'[T]he best interests of the child' is the applicable standard governing
most decisions affecting the welfare of children[,]" and is applied "in
determining the appropriate surname to be given to a child, regardless of the
child's birth status." Id. at 139. A child's surname should only be altered "when
the change promotes the child's best interests." Ibid. (quoting In re Saxton, 309
N.W.2d 298, 301 (Minn. 1981)).
Our Court rejected the preference that other state courts afforded to
paternal surnames in the context of determining the best interests of the child,
finding that "[t]he preservation of the paternal bond is not and should not be
dependent on the retention of the paternal surname; nor is the paternal surname
an indispensable element of the relationship between father and child," id. at
141, and adopted a strong presumption in favor of the custodial parent's c hoice
of surname that is rebuttable. Id. at 144-45. The burden is on the non-custodial
parent to prove, by a preponderance of the evidence, that the custodial parent's
choice of surname is not in the best interests of the child. Id. at 145.
"Courts should examine scrupulously all factors relevant to the best
interests of the child and should avoid giving weight to any interests
unsupported by evidence or rooted in impermissible gender preferences." Ibid.
This rebuttable presumption upholds the custodial parent's right "to make
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decisions in the best interests of the child[,]" while permitting judicial
intervention upon "a sufficient showing" that the custodial parent's choice of
name is not in the child's best interests. Ibid. In applying the best interests of a
child in determining a surname, courts should consider a number of criteria,
including:
the 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.]
In Staradumsky v. Romanowksi, 300 N.J. Super. 618, 621 (App. Div.
1997), we exercised original jurisdiction, pursuant to Rule 2:10-5,8 to change
the child's name. The plaintiff mother applied to change the first, middle, and
last names of the parties' three-year-old son. Id. at 619. The parents were
unmarried, but while in a relationship, agreed to have the child baptized as
Stefan Francis Joseph Romanowski. Ibid. Plaintiff claimed after the child was
born, defendant threatened to take their son away from her if she did not agree
8
Rule 2:10-5 states: "The appellate court may exercise such original jurisdiction
as is necessary to complete determination of any matter on review."
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to the name they agreed upon. Id. at 619-20. Plaintiff conceded to defendant's
demand because she feared he would cease supporting her. Id. at 620.
Defendant denied threatening her, claimed that they discussed the child's name,
and reached a compromise. Ibid.
The parties shared joint legal custody, with physical custody granted to
plaintiff. Id. at 619. Plaintiff did not like the name Stefan, and she requested to
legally change his name to Christian Francis Staradumsky. Id. at 620. Her
application was granted by the trial court. Id. at 619. Despite the court order,
each party and their families called the child by the name they preferred. Id. at
620. We addressed the holding in Gubernat and noted "[i]t did not, however,
speak of the given names, nor did it consider the change in names after the
parties had expressed an agreement, and, as in this case, confirmed the
agreement in the names given at the child's baptism[,]" ibid., and we extended
the presumption to first names as well. Id. at 621 ("The same presumption that
the name the custodial parent selects is the one that is in the child's best interest
applies whether it is first name or surname name."). Relying on a best interest
analysis, we concluded the trial court did not consider the factors set forth in
Gubernat in determining which name was in the child's best interest. Ibid.
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23
Finding the name Stefan preserved defendant's heritage, we exercised original
jurisdiction and changed the child's name to Christian Stefan Staradumsky. Ibid.
In Emma v. Evans, 215 N.J. 197, 214 (2013), our Court recognized that
"[a] name change is a significant event for a child, even for very young children.
A name originally given to a child carries a great personal significance[.]" Our
Court relied upon a study performed by "a structural-linguistic psychoanalyst on
how names are a 'unique form of linguistics linked to human identity
formation[.]'" Ibid. (quoting Lisa Kelly, Divining the Deep and Inscrutable:
Toward a Gender-Neutral, Child-Centered Approach to Child Name
Proceedings, 99 W. Va. L. Rev. 1, 59-60 (1996)).
Research has shown that "in the real lives of young
children names and identity formation are knit
together." 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."
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.
[Id. at 215 (citations omitted).]
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When evaluating the best interests of a child, the factors can be broken
down into general categories, many of which have been drawn from the Uniform
Parentage Act.9 Id. at 216. Each case, however, "should be weighed on its own
merits." Id. at 222. Our Court held the most important "use of . . . generally
recognized factors in these fact-sensitive cases is that the overall impact of the
test be child-centered." Id. at 216. These factors, many of which were derived
from Gubernat, include:
1. The length of time the child has used his or her
given 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, such as a failure to
provide support or maintain contact with the child.
9
The Uniform Parentage Act (UPA) is a uniform statutory scheme for
determining a child’s legal parentage. The UPA was first promulgated in 19 73
(UPA (1973)). Courtney G. Joslin, Nurturing Parenthood Through the UPA
(2017) 127 Yale L.J.F. 589, 598 (2018).
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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 as important ties to family
heritage or ethnic identity.
11. The effect of a name change on the relationship
between each child and each parent.
[Id. at 223.]
Here, the child has used the name Gr.C.W. since his birth, with the
exception of what appears on his recent pediatric records. It is unclear from the
record what the parties, their families, and friends call the child now or what
name he responds to. Moreover, plaintiff only has eleven hours of supervised
parenting time with the child weekly, and the vast majority of the child's time is
spent in defendant's care. We do not fault the judge for enforcing the consent
order because "[s]ettlement agreements in matrimonial matters, being
'essentially consensual and voluntary in character, . . . [are] entitled to
considerable weight with respect to their validity and enforceability' in equity,
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provided they are fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App.
Div. 2006) (second alteration in original) (quoting Petersen v. Peterson, 85 N.J.
638, 642 (1981)). Such agreements are "encouraged and highly valued in our
system." Quinn v. Quinn, 225 N.J. 34, 44 (2016). But the best interests of the
parties' child is paramount here, and equity dictates a best interests analysis
needs to be conducted, with the assistance of a guardian ad litem, to resolve the
dispute over the child's names.
III.
A guardian ad litem may be appointed by court order "[i]n all cases in
which custody or parenting time/visitation is an issue . . . to represent the best
interests of the child or children if the circumstances warrant such an
appointment." R. 5:8B. The guardian ad litem's basic role "is to assist the court
in its determination of the . . . minor's best interest." J.B. v. W.B., 215 N.J. 305,
332 (2013) (quoting Adoption of a Child by E.T., 302 N.J. Super. 533, 539 (App.
Div. 1997)). On remand, the trial judge shall appoint a guardian ad litem to
assist the court in resolving the dispute at hand.
The trial judge must also consider any misconduct or neglect by the parties
in protecting the child's best interest. Hoefers v. Jones, 288 N.J. Super. 590,
607-08 (Ch. Div. 1994). Defendant alleges plaintiff was not interested in
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parenting the child and did not want him to know his identity. She claims
plaintiff only contested paternity, expressed an interest in spending time with
the child, and requested a name change once she sought child support from him.
Plaintiff alleges that defendant barred him from the delivery room and refused
to let him see the child for weeks, causing him to question paternity. These are
salient factual questions to be addressed by the guardian ad litem and the trial
judge at a plenary hearing.
Although the parties' divorce has not been finalized, defendant has been
using her former surname on court documents since February 2018. She is in a
new relationship, but any intention to marry and change her name has not been
presented on appeal. Moreover, both parties have children from past
relationships using different surnames than this child. These are also issues to
be addressed by the guardian ad litem and at the plenary hearing.
As stated in Emma:
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
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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.
[215 N.J. at 218.]
Defendant directs our attention to an unpublished Appellate Division case,
Repack v. Keavy, No. A-5537-13 (App. Div. June 9, 2015). 10 There, the parties
were unmarried and had one child together. Id. at 1. After paternity was
established, the father requested to be added to the child's birth certificate, that
his last name be added to the child's then current last name, and to be granted
joint legal and residential custody. Ibid. After oral argument, the trial court
partially granted the father's request, ordering joint legal custody of the child,
that he be listed on the birth certificate, and also awarded the mother child
support. Ibid. The trial court ordered a best interest of the child evaluation,
which recommended that the father's last name be added to the child's name to
"help foster her identification with her father." Id. at 2.
10
Unpublished opinions are not binding on any court and should not be relied
upon for precedential authority. Pressler & Verniero, Current N.J. Court Rules,
cmt. 2 on R. 1:36-3 (2019). "Although the parties may bring unpublished
opinions to the attention of the court, the court itself may not cite an unpublished
opinion except to the limited extent required by the application of preclusionary
legal principals or case history." Ibid.
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The parties submitted briefs on the issue, but the court cancelled the
hearing and issued an order and statement of reasons requiring the mother to
include the father's name, named both parties joint residential and legal
custodians, and set a parenting schedule. Ibid. We reversed the determination
on the addition of the father's surname because the trial court incorrectly stated
that Emma abandoned the Gubernat rebuttable presumption in favor of the
custodial parent's preference of last name. Id. at 14. The facts there were similar
to Gubernat, in that the parties did not agree upon a name for the child. Ibid.
We also held that the custodial parent, the mother, should have been "entitled to
a heavy presumption in favor of the name she chose for the child." Id. at 15.
Repack is distinguishable. Similar to Emma, the parties agreed upon a name for
their child, and defendant's name preference is not entitled to the presumption
set forth in Gubernat.
IV.
Finally, N.J.A.C. 8:2-1.4(a) provides that "[t]he designation of a child's
name including the surname is the right of the child's parent(s)."
1. Where either parent is unavailable for any reason, the
choice of the child's name(s) rests with the parent who
has custody of the newborn child. That parent shall
state in writing on the back of the birth record that the
other parent is not available; thereafter the recording
parent shall be the sole informant for the purpose of
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compliance with N.J.S.A. 26:8-26[11] and this
subchapter.
2. In cases where both parents have custody of the
child, and both are available, and disagree on the
selection of a surname, the surname selected by one
parent and the surname selected by the other parent
shall both be entered on the certificate, separated by a
hyphen, with the selected names entered in alphabetical
order.
[N.J.A.C. 8:2-1.4(a)(1) to (2).]
The State Administrative Code also provides, "[i]f the birthing parent is married
at the time of the birth . . . the spouse's name shall be listed on the birth record
unless the spouse denies parentage and both the husband and wife agree and
acknowledge the denial in writing on the Affidavit of Denial of Paternity form."
N.J.A.C. 8:2-1.5(b). Plaintiff was not present at the child's birth. There are
conflicting certifications regarding the circumstances which prevented him from
being present—plaintiff claims defendant barred him from the delivery room,
and defendant contends he was notified and did not appear—and defendant also
claims that plaintiff denied paternity.
11
N.J.S.A. 36:8-26 requires each subregistrar to note the date of filing on every
birth or death certificate, and to forward all certificates to the local registrant of
the district within five days.
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"A plenary hearing is required when the submissions show there is a
genuine and substantial factual dispute regarding the welfare of the child [.]"
Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). "[I]t is well[-]settled
that the court's primary consideration is the best interests of the child[]" in
custody and visitation determinations. Ibid. A decision made "without
examination and cross-examination of lay and expert witnesses, and without a
statement of reasons is untenable in the extreme." Fusco v. Fusco, 186 N.J.
Super. 321, 327 (App. Div. 1982).
In sum, we reverse and vacate the August 29, 2018 final judgment of name
change. On remand, the trial judge shall appoint a guardian ad litem to
determine the best interest of the child as to his names and a plenary hearing
shall be conducted on this issue. We find the other arguments advanced by the
parties lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Reversed, vacated, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
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