Gender-neutral approach to the modification of a child’s surname.
The Supreme Court of New Jersey, in Gubernat v. Deremer, 140 N.J. 120 (1995), in resolving a dispute between parents about a child’s surname, set a presumption in favor of the surname requested by the parent of primary residence. It was presumed that the parent of primary residence acted in the child’s best interest. At the time, the Court’s goal was to ensure that historic paternalistic preferences were set aside. However, since 1995, the family unit has evolved; there are more divorces, fewer marriages, more children born out of wedlock and same-sex marriages/unions. And mothers are more often than not the parent of primary residence, thus the Gubernatapproach has become a gender biased approach.
The Supreme Court of New Jersey recently held, in Emma v. Evans, 2013 N.J. LEXIS 826 (N.J. Aug. 12, 2013), that the parent of primary residence shall no longer receive a presumption in his/her favor when courts consider the modification of a child’s surname. Instead, the party seeking to alter a surname jointly given to a child at birth bears the burden of proving by a preponderance of the evidence that the requested change is in the child’s best interest. Id. The court’s approach has evolved into a purely child-centric one. The Court noted that the decision to modify a child’s surname is a major decision, and, where parents share joint legal custody of a child, they should first attempt to agree on the child’s surname prior to seeking the court’s involvement.
Notably, just across the border in Pennsylvania there is a different standard for modifying a child’s surname. Pursuant to 28 Pa. Code § 1.7(b) (1975), “[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.”
If you have questions about children’s surnames, contact the law firm of Wilhelm & Roemersma to speak with one of our experienced attorneys.
THE FOREGOING IS INTENDED TO BE A GENERAL DISCUSSION OF THE LAW AND IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC QUESTION, PLEASE CONTACT OUR OFFICE AND SPEAK WITH AN ATTORNEY.