W. v. H.

Consodine, J. C. C.

(temporarily assigned). Plaintiff proves a complaint for divorce on the ground of extreme cruelty and seeks as further relief permission to resume her maiden name and to change the surname of the children to that name in their best interest. There are three children of the marriage, two of whom are unemancipated teenagers.

Generally, it is against the policy of the court to grant permission to resume a maiden name where unemancipated children who bear a different name are involved. The facts of this case clearly call for an exception.

In this case defendant pleaded guilty to sexual intercourse with his 11-year-old daughter and was sentenced to eight to ten years’ imprisonment. Previously lie had impregnated his oldest daughter, with the result that a child was horn of this relationship.

Query — can this court under its general equity jurisdiction and in the best interest of the children direct a change of surname to the mother’s maiden name ?

Our authority is sparse and tangential but relevant.

In Sobel v. Sobel, 46 N. J. Super. 284, 286, 287 (Ch. Div. 1957), the Court observed that in dealing with the custody of a child it had broad discretion, being aware that the welfare and happiness of the child is the controlling consideration and that only extenuating circumstances warrant the forfeiture of a father’s right to have his progeny bear his name.

The circumstances of this case negate that right. The actions of the defendant have caused physical, psychological and emotional detriment to the children. They are pariahs among their peers and thus forced to a nomadic existence.

Judgment of divorce on the ground of extreme cruelty, reserving to plaintiff the right to resume her maiden name and directing the use of that name by the unemancipated children in their best interest.