Family Matters

Rethinking your child’s surname?

Have you ever considered changing your child’s last name? In New Jersey the courts use 11 factors to decide if a parent has proven a name change would be in the best interest of their child. These 11 factors have developed over time and are the result of our constantly developing society throughout the years.

Studies show that over the last few decades there are less people getting married, more marriages are ending in divorce, and more children are being born out of wedlock. Heterosexual relationships are no longer considered the norm. A woman’s role in a family has been completely redefined and more men are now staying at home and raising the children why the women are out working and making an income for their family. These changes were all considered by the courts when deciding the appropriate standard and factors to apply when deciding if a parent has the right to change their child’s last name.

New Jersey Courts have moved from the presumption that children are automatically given the same surname as their father, to using the best-interest-of-the-child standard while placing significant weight on the presumption that the custodial parent knows the child best and therefore knows what is in their best interests. See Gubernat v. Deremer, 140 N.J. 120, 657 A.2d 856 (1995).

Nowadays, the courts use the best-interests-of-the-child standard without placing any weight on the presumption that the surname chosen by parent with whom the child or children primarily reside is the surname that is in the child’s best interests.

In situations where both parents agreed on the surname the child would take when they were born, but down the road disagree about whether to change the child’s surname, the parent seeking the change has the burden of showing by a preponderance of the evidence, or more likely than not, changing the name would be in the best interest of the child.

The courts use the best-interest-of-the-child standard by applying the following factors to the facts of each individual case:

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 failure to provide support or maintain contact with the child;
6. Degree of community respect, or lack thereof, associated with either parental or maternal name;
7. Improper motivation on the part of the parent seeking the name change;
8. Whether the mother has changed or intents 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; and
11. The effect of a name change on the relationship between the child and each parent. Emma v. Evans, 215 N.J. 197, 71 A.3d 862 (2013).

Typically, both parents would be able to present their facts and arguments for each factor. Once each party presents their case, it is for the court to decide whether the moving party has met their burden and showed by a preponderance of the evidence that the name change would be in the best interest of the child.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.