(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 interests of brevity, portions of any opinion may not have been summarized).
Argued January 18, 1995 -- Decided May 11, 1995
STEIN, J., writing for a unanimous Court.
Scott Thomas Deremer was born July 4, 1991, the son of Alan Gubernat and Karen Deremer. The
parties decided not to marry. Gubernat initially doubted his paternity and was not named on Scott's birth
certificate. After Gubernat requested a determination of paternity, blood tests were taken in January 1992. In
February 1992, when the blood tests confirmed that Gubernat was the father, he immediately admitted paternity
and attempted to establish a relationship with his son.
After informal visitation arrangements resulted in disagreements between Gubernat and Deremer,
Gubernat filed the within action. In it, he sought various relief including joint custody and the change of Scott's
name to Gubernat. The trial court awarded joint legal custody with liberal visitation rights for Gubernat. In
addition, the court determined that Scott should assume his father's surname.
Deremer appealed. After a remand for a clarification of the trial court's findings, the Appellate Division
affirmed. It determined that bearing his father's surname was in Scott's best interest. The Supreme Court
granted Karen Deremer's petition for certification.
HELD: 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.
1. The Anglo-Saxon tradition of surnames dates back to the Norman conquest of England in 1066. Through
the middle ages and the colonial period, the use of the father's surname reflected society's legal and cultural
attitudes towards women. Illegitimate children were filius nullius, the "son of no one." (pp. 8-20)
2. In the nineteenth century, reformers attempted to rectify the status of illegitimate children by placing the
mother and child in a legal family unit. As a result, children born of wedded parents received the paternal name;
children born of unwed parents received the maternal name. (pp. 20-23)
3. In recent years, the Legislature has taken various steps to remedy past gender-based differences in the rights
and responsibilities of parents and spouses. In so doing, the Legislature has determined that parental disputes
about children should be resolved in accordance with each child's best interests. That is the applicable standard
governing most decisions affecting the welfare of children. (pp. 24-27)
4. The Court applies the "best interests" standard to determine the appropriate surname to be given a child,
regardless of the child's birth status. In applying that standard, the Court declines to accept the preference that
some courts have accorded paternal surnames. The 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. (pp. 27-30)
5. To enhance the predictability of the best-interest standard, the Court adopts a strong presumption in favor of the surname chosen by the custodial parent. The non-custodial parent bears the burden of demonstrating by a preponderance of the evidence that despite the presumption, the chosen surname is not in the best interests
of the child. The rebuttable character of the presumption serves two ends: it protects the right of the custodial
parent to make decisions in the best interests of the child; and it permits judicial intervention on a sufficient
showing by the non-custodial parent when the decision does not reflect the best interests of the child. (pp. 30-36)
6. The Court acknowledges that as a result of the standard adopted today, numerous children will be authorized
to bear surnames that are different from their fathers'. Its assumption is that society has become accustomed
to and tolerant of departures from the familiar preference for paternal surnames and that tolerance and
acceptance will grow as the practice becomes more common. The Court is firmly convinced that today's decision
is not only consistent with the best interests of the affected children but also reflects the significant societal
changes in women's rights. (p. 36)
7. In applying the standard adopted today to the facts of this case, the Court concludes that the trial court and
Appellate Division erred in granting the requested name change. It is the love of the parent, not the name of
the parent, that binds parent and child. (pp. 37-38)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for further proceedings consistent with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, and GARIBALDI join
in JUSTICE STEIN's opinion. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
66 September Term 1994
ALAN GUBERNAT,
Plaintiff-Respondent,
v.
KAREN E. DEREMER,
Defendant-Appellant.
Argued January 18, 1995 -- Decided May 11, 1995
On certification to the Superior Court,
Appellate Division.
Lawrence S. Lustberg argued the cause for
appellant (Crummy, Del Deo, Dolan, Griffinger
& Vecchione, attorneys; Barbara A. Hedeen, of
counsel; Mr. Lustberg and Jonathan Romberg,
on the briefs).
James C. Richardson argued the cause for
respondent (Mr. Richardson, attorney; Anthony
R. Cambria, on the brief).
The opinion of the Court was delivered by
STEIN, J.
The question presented by this appeal concerns the right of a father, in cases involving disputes over a child's surname, to insist that the child bear his surname. The issue arises in the context of a child, born to unmarried parents, who was given his mother's surname at birth, the father having refused to acknowledge paternity. When his paternity was established by
tests performed approximately seven months later, the father
acknowledged paternity and commenced visitation. Shortly
thereafter, the father instituted litigation seeking joint
custody, increased visitation, and a change of the child's
surname. The trial court awarded the father joint custody and
increased visitation, but the child's mother retained primary
physical custody. The trial court, recognizing "the father's
interest in maintaining his relationship with his child for their
mutual benefit," ordered that the child assume the father's
surname. The Appellate Division affirmed in an unreported
opinion.
The recognition by the courts below of a preference for
paternal surnames is supported by Western custom and law spanning
more than six centuries. The practice of children assuming the
father's surname is traceable to the English medieval property
system in which the husband controlled all marital property.
That preference continued in America, reflecting not only the
long-standing English tradition but also the societal
distinctions in the status of men and women. Until the latter
part of this century, the assumption that children would bear
their father's surnames was a matter of common understanding and
the preference for paternal surnames was rarely challenged. But
the historical justifications that once supported a tradition in
the law for children to bear paternal surnames have been
overtaken by society's recognition of full legal equality for
women, an equality that is incompatible with continued
recognition of a presumption that children must bear their
father's surname. That presumption shall no longer apply in this
State. We hold instead 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. We apply that rule
of law to the facts at hand, and reverse the judgment of the
Appellate Division.
Scott Thomas Deremer was born July 4, 1991, the son of plaintiff Alan Gubernat and defendant Karen Deremer. The parties decided not to marry. Plaintiff initially doubted his paternity, and was not present at the birth of Scott, nor was he named on Scott's birth certificate. Karen assumed physical custody of Scott and has retained custody throughout. Alan first saw his son in July or August 1991, but "didn't know [Scott] was my son at that time." After plaintiff requested a determination of paternity, blood tests were conducted in January 1992. In February 1992, when the tests confirmed that Alan was the father, he immediately admitted paternity, contacted Karen, and attempted
to establish a relationship with his son. Alan and Karen
informally arranged for Alan to visit his son two or three times
each week.
Subsequent disagreement between the parties regarding the
extent of Alan's visitation rights resulted in an order issued by
the trial court in March 1992 granting Alan temporary visitation
rights, consisting of two hours on Sunday afternoon and two hours
on Wednesday evening. Shortly thereafter, Alan instituted this
action seeking joint custody of Scott, joint consultation on
decisions affecting his education, health, and welfare, greater
visitation privileges, and the change of his name to Scott Thomas
Gubernat. In May 1992, Alan and Karen agreed to modify Alan's
visitation schedule to permit visitation every Sunday from 10:00
a.m. to 5:00 p.m.
In July 1992, the trial court held a hearing on issues
related to custody and visitation. Based on proofs presented at
the hearing, the court found "as a fact that both parents, both
the mother and father, are loving parents of this child." The
evidence adduced indicated that Karen had been employed for the
past five years by the World Apostolate of Fatima. She testified
that she had conscientiously discharged the day-to-day
responsibilities of parenthood, that she had borne sole
responsibility for Scott's care during infancy, and had received
strong support from her family. The evidence confirmed that Alan
also enjoyed family support in caring for Scott, both from his
parents, who lived next door, and from his sisters. Alan was
self-employed as a mason and was described by a construction
contractor as reliable, hard-working, and competent. He
testified to his close relationships with his sister's children.
He stated that during visitation he would play with his son, or
take him to visit members of his family. Alan testified that he
had purchased equipment that Scott needed, including a stroller,
a walker, a baby carriage, and a play pen.
When asked by his counsel why he wanted his son to bear his
surname, Alan testified:
Well myself, I would want my son to recognize
who his father is. And I know that's not
just in the name alone, it's also the time we
spend. It is important for me when he deals
with other children as he gets older to see
that he, yes he does have a father and he has
a father who cares and will always be there
for him.
On cross-examination, Alan responded that his desire for Scott to
bear his surname was intended to assure Scott that "he always has
a father." Alan stated that by bearing his surname, his son
would "know that whatever happened in the future, if God forbid
if Karen moves to another State or something like that, that . .
. he will always have a father and know that he was always there
for him or made every attempt to."
Karen testified that she opposed both the imposition of the
paternal surname and the use of the hyphenated name Deremer-Gubernat. She explained the basis of her objection: "I believe
since the child's birth I have been the primary caretaker of the
child. I also feel that it's easier if the child's last name
matches my last name. We live in a small local area. The
Deremer name is know[n]." The judge questioned Karen directly
whether she ever "expect[ed] to get married," because if "some
day assuming you get married . . . you would have a situation
where you have one name and your child has another name." Karen
replied that that was a "difficult question[] to answer under the
circumstances," but "[r]ight now I can say no."
The trial court awarded Alan joint legal custody of Scott
and granted liberal visitation privileges. Additionally, the
court determined that the child should assume the surname of the
father. The court noted that the "father's desire to have
progeny and also to have some one carry on his name is proper.
It's a right that the father has." The court determined that the
paternal right to name the child carries little relevance if its
purpose is in "protecting [the father's] ego or in preserving his
perceived male prerogatives," but to the extent "the right
recognizes the father's interest in maintaining his relationship
with his child for their mutual benefit, it becomes highly
relevant." Concluding that the effect on the child of carrying
the maternal surname might be to contribute to the child's
"[estrangement] from the father who exhibits a desire to preserve
a paternal relationship," the court ruled that the child will
henceforth be known as Scott Thomas Gubernat. Defendant obtained
a stay in order to appeal the decision with respect to the name
change. See Rule 2:9-5.
In January 1993, the Appellate Division remanded the matter
to the Chancery Division "to permit the aforesaid trial judge to
clarify the findings of fact and conclusions of law with respect
to the furtherance of the best interests of the infant child in
effecting a change of the child's surname." In March 1993, the
trial court issued an opinion supplementing its prior decision.
The court reiterated its determination 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, although
the "plaintiff . . . has expressed a continuous and enthusiastic
desire to participate actively in the upbringing of his son."
The court rejected Karen's "main objection to the child's
retention of the father's surname [as] that she has been the
primary caretaker of the child since his birth, a factor which
she claims should allow the child to take her surname."
In an unreported opinion, the Appellate Division affirmed.
The court found the equities were no worse than in equipoise, but
noted that a child's paternal identity and its "resulting bond
with his father" was of importance in strengthening the
relationship between the child and the non-custodial parent, and
therefore determined that bearing the paternal surname was in the
best interests of the child. We granted certification.
137 N.J. 313 (1994).
The term "surname" comes from the French word "surnom"
"sur" meaning above or beyond, "nom" from the Latin "nomen,"
meaning name. Yvonne M. Cherena Pacheco, Latino Surnames: Formal
and Informal Forces in the United States Affecting the Retention
and Use of the Maternal Surname, 18 T. Marshall L. Rev. 1, 5
(1992). The use of surnames is a relatively recent historical
practice. "In the early life of all races surnames were unknown,
while given names have been used from the most distant times to
identify and distinguish a particular individual from his
fellows." Smith v. United States Casualty Co.,
90 N.E. 947, 948
(N.Y. 1910). "From the beginning to the midpart of the Middle
Ages, the term 'name' referred to the given or first name of the
individual." Cherena Pacheco, supra, 18 T. Marshall L. Rev. at 5
(footnote omitted).
The Anglo-Saxon tradition of surnames dates back to the
Norman Conquest in 1066. Ibid.; In re Shipley,
205 N.Y.S.2d 581,
586 (Sup. Ct. 1960) ("Surnames are said not to have been used in
England until the Norman conquest."). The Normans introduced a
number of non-English given names, such as "Richard," "Robert,"
and "William," of which William "became and remained the single
most common recorded name in the twelfth century." M.T. Clanchy,
England and Its Rulers: 1066-1272 57 (1983). However, although
each village or town might have had only "'ten Williams, [and] a
similar number of [Roberts and Richards,]' . . . distinctions
often needed to be made if two villagers were talking about
[William], misunderstandings would arise if each had a different
[William] in mind. So qualifications were added . . . ."
Cherena Pacheco, supra, 18 T. Marshall L. Rev. at 6, n.15
(quoting J. N. Hook, Family Names (1982)). "Beginning with the
influence exerted by the Normans following their conquest of
England in the eleventh century, the practice of adding second
names became more common as the relative scarcity of Christian
names led to a great number of people bearing the same name."
Richard H. Thornton, Note, The Controversy Over Children's
Surnames: Familial Autonomy, Equal Protection and the Child's
Best Interests, 1
979 Utah L. Rev. 303, 305; see also G.S. Arnold,
Note, Personal Names, 15 Yale L.J. 227, 227 (1906) ("At that
time, owing to the paucity of Christian names (probably an
estimate of two hundred would cover them all), it became
customary to add a name to that of baptism."). Although the
growth of population and the development of cities required a
means of distinguishing between individuals with identical given
names, the Normans also introduced a number of social practices--the imposition of a feudal land system and the use of
primogeniture as a system of inheritance--that likewise spurred
the development of surnames. See Beverly S. Seng, Like Father,
Like Child: The Rights of Parents in Their Children's Surnames,
70 Va. L. Rev. 1303, 1323 (1984).
Surnames came from a number of sources, including "accident,
caprice, taste, and a multitude of other causes." Smith, supra,
90 N.E. at 948. "It is to be noted, however, that the surname in
its origin was not as a rule inherited from the father, but
either adopted by the son, or bestowed upon him by the people of
the community where he lived." Ibid. Surnames often were
derived from the area in which a person lived. Men who owned
property commonly took their surnames from their places of
habitation. Ibid. "In the rush of conversation some words would
get passed over which caused surnames to flourish. Thus, one
ordinarily described as 'John from the hill' might eventually
[become] 'John Hill.'" Cherena Pacheco, supra, 18 T. Marshall L.
Rev. at 6 (quoting J.N. Hook, Family Names (1982)). Artisans and
craftsmen derived surnames from their occupations. "Thus, John
the carpenter, evolved into John Carpenter." Ibid. In addition,
a particular attribute or characteristic of a person could become
that person's surname:
So, as suggested, something in the
appearance, character, or history of the
individual gave rise to the surname, such as
his color, as black John, brown John, white
John, afterwards transposed to John Brown,
[etc.]; or it arose from his bulk, heighth,
or strength, as Little, Long, Hardy, or
Strong; or his mental or moral attributes, as
Good, Wiley, Gay, Moody, or Wise; or his
qualities were poetically personified by
applying to him the name of some animal,
plant, or bird, as Fox or Wolf, Rose or
Thorn, Martin or Swan; and it was in this way
that the bulk of our surnames . . .
originated and became permanent.
[In re Snook,
2 Hilt. 566, 570 (N.Y. Ct.
Common Pleas 1859).]
"To give their children unique names, parents combined thematic
words such as 'courage' or 'peace' to create compound names such
as Ecgbeorht, the modern Egbert, meaning 'bright sword,' or
Wulfraed, meaning 'wolve's cunning.'" Seng, supra,
70 Va. L.
Rev. at 1323.
Additionally, surnames expressive of kinship were chosen.
"The Normans brought with them a custom of naming sons after
their fathers (as in Ray son of Hugh) as a convenience to the
feudal system: the feudal lord could thus more easily identify
sons of the soldiers most loyal to him." Id. at 1324. However,
patronymics, a name derived from that of the father, was neither
compelled nor universal:
Inquiry into the naming practices of Western
societies demonstrates that names ordinarily
express kinship, but not necessarily
paternity. Matronymics, names derived from
the maternal line, have been employed in
several Western cultures, including modern
Spain and medieval England. In England, at
least as late as the fourteenth century, both
sons and daughters adopted their mothers'
surnames, often upon succeeding to their
mothers' estates or in hopes of doing so.
Men also adopted their wives' surnames if the
couple inherited property from the woman's
family. The children of such couples
presumably also took their mothers' surnames.
Even among the non-propertied classes,
children sometimes used the maternal
surnames. Historian and linguist C. M.
Matthews explained the custom:
[A]n illegitimate boy might be called by his mother's name, but it was equally natural and useful to refer to the son of a highly
respected widow in the same way, or even,
when the father was alive but away for years
on some distant expedition or married to a
dominant wife, the lad might be spoken of . .
. as belonging to Moll or Alison or Margery.
The paternal surname, even if initially
bestowed, did not necessarily survive the
father's absence. Many of these English
matronymics are still in use. As many as
one-tenth of contemporary English surnames of
relationship (as contrasted to those derived
from names of places or occupations) were
originally matronymics.
[Id. at 1321-22 (footnotes omitted) (brackets
in original).]
Eventually the medieval property structure, which invested all marital property in the husband, and the firm and exclusive establishment of primogeniture in the fourteenth century, resulted in the widespread use of hereditary paternal surnames. "Some time after the early fourteenth century, surnames began to serve as hereditary family names, partly because the inheritance of property was often contingent upon an heir's retention of the surname associated with that property." Thornton, supra, 1 979 Utah L. Rev. at 305; see also Cynthia Blevins Doll, Note, Harmonizing Filial and Parental Rights in Names: Progress, Pitfalls, and Constitutional Problems, 35 How. L.J. 227, 229 (1992) ("The custom of patrilineal succession evolved from the medieval property system, in which the husband controlled all marital property. . . . In addition, a married woman in medieval times could not contract or maintain suit in her own name. The male was the legal representative of the family and, as such,
enjoyed the unilateral right to name his family.") (footnote
omitted). "The custom of patrilineal succession seems to have
been a response to England's medieval social and legal system,
which came to vest all rights of ownership and management of
marital property in the husband." In re Schiffman,
620 P.2d 579,
581 (Cal. 1980). As one commentator noted, the mechanics of
recording entitlement to land prompted the retention of the
paternal surname:
"The land could be claimed and awarded
only at the Manorial Court, being held 'by
copy of the Court Roll,' which meant that the
life tenant's name was inscribed there on
permanent record. This system provided a
direct incentive to men to keep the same
surname that had been put down on the roll
for their father or grandfather. And even
younger sons--having in mind the uncertainty
of life--might think it just as well to use
the name too, even if it was Whalebelly or
Chickenhead."
[Seng, supra,
70 Va. L. Rev. at 1325 (quoting
C. Matthews, English Surnames 43-44 (1967).]
"Allowing the husband to determine the surname of their offspring
was part of that system, wherein he was the sole legal
representative of the marriage, its property, and its children."
In re Schiffman, supra, 620 P.
2d at 581. "Given the secondary
status afforded to women at those times, it is not surprising
that the masculine lineage was chosen." M.D. v. A.S.L.,
275 N.J.
Super. 530, 533 (Ch. Div. 1994).
The customary use of hereditary parental surnames was
further institutionalized during the reign of Henry VIII of
England (1509-1547) in the early sixteenth century. The King
established the Parish Registry System governing the recording of
births, marriages, and deaths. In re Shipley, supra, 205
N.Y.S.
2d at 586. Each parish had to keep records of the births,
marriages, and deaths of the parish inhabitants. "The effect was
to encourage families to identify themselves under the father's
name for recording purposes." Shirley Raissi Bysiewicz & Gloria
Jeanne Stillson MacDonnell, Married Women's Surnames,
5 Conn. L.
Rev. 598, 600 (1973); see also In re Snook, supra, 2 Hilt. at 571
("[T]his recording of such events in every family, led to the use
of one name to designate the members of one family, which the
record served to perpetuate; transmitting it from father to son,
until the practice became general for all descendants to bear,
and become known by, the name of a common ancestor."); Thornton,
supra, 1
979 Utah L. Rev. at 305-06 ("The trend seems to have been
hastened by the promulgation of a regulation during the reign of
Henry VIII that required a record to be kept in every parish of
the births, marriages, and deaths of the parish inhabitants, with
legitimate births generally being recorded in the name of the
father."); Doll, supra,
35 How. L.J. at 229 ("The budding
tradition further continued when Henry VIII required marital
births to be recorded under the name of the father."). Certain
benefits of that practice accrued to the Crown:
[E]asier identification of the citizen would
permit the government to call upon the
citizen for purposes of taxation and other
ways of serving the government.
The government bestowed the patronymic
name upon each child whose parents were
married, thus further legitimizing the child
through the naming process. The father was
also legitimized for bringing forth a new
heir and subject to the king.
[Cherena Pacheco, supra, 18 T. Marshall L.
Rev. at 7 (emphasis omitted).]
Inevitably, the institutionalized tradition of assuming the
hereditary patronymic surname, and the secondary legal status of
women in England, diminished the importance of the maternal
surname. As one commentator observed:
The matronymic name, on the other hand,
was not even considered in this naming or
recording process, nor was it viewed with the
same level of legitimacy as that of the
paternal name. Although it was the mother
who gave birth, and who gave to the child
part of her identity, she could not give the
child her name. The English Crown had no
interest in the mother's surname, it was not
deemed legitimate or worth perpetuating.
However, a distinction in English common law arose in respect of a child born of unmarried parents. "At common law, an illegitimate child was filius nullius, the son of no one, or filius populi, the son of the people." D.R.S. v. R.S.H., 412 N.E.2d 1257, 1261 (Ind. Ct. App. 1980). The child had no mother or father recognized by law, and therefore had no legal rights. Because the child could not inherit property, the impetus to bear the paternal surname was diminished. "[C]ustom did not dictate the name by which an illegitimate child would be known; the child bore the name gained by reputation in the community." Ibid.; see
also Secretary of Commonwealth v. City Clerk of Lowell,
366 N.E.2d 717, 725 (Mass. 1977) ("It has been reported that under
English law an illegitimate child acquired no name at birth, and
could only acquire a surname by reputation."); M.D. v. A.S.L.,
supra, 275 N.J. Super. at 533 ("He acquired the name of neither
mother nor father and only assumed a surname later in life based
on some factor other than lineage."); Thornton, supra, 1
979 Utah
L. Rev. at 312 ("At early common law an illegitimate child was
known as a 'nullius filius,' or a son of nobody, and consequently
did not acquire a hereditary surname from either his father or
mother; his surname was that which he later gained by
reputation.") (footnote omitted).
The traditional use of the paternal surname was brought to
this country by the colonists. Historical review clearly
demonstrates that the continuation of the English custom of
patronymic surnames in the colonies was intrinsically linked to
greater social forces, particularly the inferior legal status of
women. See In re Rossell,
196 N.J. Super. 109, 114 (Law Div.
1984) ("Names . . . are intimately involved with the status of
women."). A 1632 document entitled The Lawes Resolutions of
Womens Rights provides an insightful glimpse into the societal
and familial role of woman. The woman, after marriage, is
described as a "poor rivulet [that] looseth her name" on merging
with the "Rhodanus, Humber, or the Thames." Howard Zinn, A
People's History of the United States 105 (1980) (quoting The
Lawes Resolutions of Womens Rights (1632)). "'A woman as soon as
she is married, is called covert . . . that is, "veiled"; as it
were, clouded and overshadowed; she hath lost her streame. I may
more truly, farre away, say to a married woman, Her new self is
her superior; her companion, her master . . . .'" Ibid. (quoting
The Lawes Resolutions of Womens Rights, supra). Colonial women
had no legal identity separate from their husbands and were thus
subordinated to them:
Living within a family meant a state of
dependence for everyone but the patriarch.
Women rarely had an independent existence, at
least in law. In public records women were
usually referred to simply as the "wife of,"
or the "daughter of," or the "sister of" some
male. Before marriage they legally belonged
to their fathers and after marriage to their
husbands. . . . With their husbands alive
women were considered legally to be like
children: they could not sue or be sued,
draft wills, make contracts, or deal in
property.
[Gordon S. Wood, The Radicalism of the
American Revolution 49 (1991).]
In contrast, the rule of a father of the household over his
family has been described as a diminutive version of the reign of
a king over his people. "The head of the household remained a
kind of miniature king, a governor or protector to whom respect
and subjection were due." Ibid. "It has been suggested that
[the] bestowal of the paternal surname upon a child not only has
its basis in custom, but also in the absolute role a father had
as head of his family." Thornton, supra, 1
979 Utah L. Rev. at
306.
The father's position in the family was
expressed in The Spectator, an influential
periodical in America and England: "Nothing
is more gratifying to the mind of man than
power or dominion; and . . . as I am the
father of a family . . . I am perpetually
taken up in giving out orders, in prescribing
duties, in hearing parties, in administering
justice, and in distributing rewards and
punishments. . . . In short, sir, I look upon
my family as a patriarchal sovereignty in
which I am myself both king and priest."
The retention of the English law of primogeniture and the
related practice of entail, which allowed the testator to keep
the land intact by passing it through the "stem" line of the
family, ensured that "[t]he land belonged to the male line" and
continued the custom of children receiving the male surname.
Wood, supra, at 46.
Most New England farmers, and perhaps most
others too, thought mainly of providing for
their families and rarely justified their
acquisitiveness in any other terms than the
needs of their families. What they
principally wanted out of life was sons to
whom they could pass on their land and who
would continue the family name. For
Virginians as well as New Englanders, "a
man's patrimony . . . is a sacred depositum."
The struggle to survive and prosper and the subsequent Revolutionary War blurred gender roles. "Certainly by 1750 ancient patriarchal absolutism no longer had the same ideological significance it had once possessed," id. at 147, and women gained limited practical and legal autonomy. "Married women in the
colonies continued in general to have greater legal rights than
their counterparts in England (though after mid-century efforts
to bring colonial law into line with English common law did at
times legally restrict the rights of wives)." Ibid. The
American Revolution witnessed working-class women actively
participating at both the home-front and battle-front. Women
formed patriotic groups, campaigned against British practices,
produced propaganda, and cared for and fought alongside men in
the last years of the war. Zinn, supra, at 108-09. Abigail
Adams wrote to her husband, John Adams, in 1776:
[I]n the new code of laws which I suppose it
will be necessary for you to make, I desire
you would remember the ladies, and be more
generous to them than your ancestors. Do not
put such unlimited power in the hands of
husbands. Remember, all men would be tyrants
if they could.
After the Revolutionary War none of the States, with the exception of New Jersey, granted women the right of suffrage. (New Jersey rescinded the right in 1807. Ibid.) Although women actively campaigned in the 1830's and 1840's on behalf of slaves, prisoners, the insane, and themselves, they nevertheless remained a class denied the right to vote, to hold marital property, and to pursue educational opportunities. Id. at 123. Reforms that did occur often were either limited or equally constraining. "The passage of the Married Women's Property Acts in most states and in England during the latter half of the 19th Century removed
the common law disability but did not achieve equality for
women." Bysiewicz & MacDonnell, supra,
5 Conn. L. Rev. at 601.
Nineteenth-century reformers did attempt to rectify the
status of illegitimate children as a "son[/daughter] of nobody,"
Thornton, supra, 1
979 Utah L. Rev. at 312, by placing the mother
and child in a legal family unit. That was accomplished by
legislation awarding custody of the child to the mother,
consistent with "her duty to support him, as his natural
guardian." Secretary of Commonwealth, supra, 366 N.E.
2d at 726;
see also Commonwealth v. MacKenzie,
334 N.E.2d 613, 616 (Mass.
1975) ("At common law, the father of an illegitimate child had no
duty to contribute to the support of his child whereas the mother
did have such a duty.") (citation omitted); Commonwealth v. Hall,
78 N.E.2d 644, 647 (Mass. 1948) ("'In legal contemplation, a[n]
[illegitimate child] is generally considered as the relative of
no one. But, to provide for his support and education, the
mother has a right to the custody and control of him, and is
bound to maintain him, as his natural guardian.'") (quoting
Wright v. Wright,
2 Mass. 109, 110 (1806)). One effect of those
statutes was to incorporate into law what had already developed
as custom--that a child born of unmarried parents would assume
the mother's surname. Thornton, supra, 1
979 Utah L. Rev. at 312;
M.D. v. A.S.L., supra, 275 N.J. Super. at 533 ("Over a period of
time custom decreed that the child usually assumed his mother's
surname."). The assumption of the maternal surname by the child
born out of wedlock was not the result of a right or privilege
extended to women, but instead was incidental to the societally
imposed duty on her to care for the child:
Prior to the mid-nineteenth century, a
child born to unwed parents had the status of
filius nullius, a child of nobody. This
meant, among other things, that nobody had
the right to the custody of the child. Among
the ameliorative steps taken in the
nineteenth century was the enactment of
statutes placing custody in the birth mother.
According to legal historian Michael
Grossberg, choosing the birth mother as
custodian was neither a coincidence nor
inevitable. While based in part on the fact
that she could be identified easily, the
decision also turned on a belief that a
mother would be a better parent. As
Grossberg says,
[M]aternal preference found its origins
in the "cult of domesticity" that pervaded
nineteenth-century American culture. These
sentiments put immense pressure on legal
authorities to place children with their
mothers whenever possible. . . .
The proposition that the grant of
custody rights to mothers was a placement of
responsibility rather than an award of
privilege is further demonstrated when one
looks at the additional rights granted the
child at the time the mother was accorded
custody rights: the use of the mother's name
and an entitlement to inherit from and
through her.
[Karen Czapanskiy, Volunteers and Draftees:
The Struggle for Parental Equality,
38 UCLA
L. Rev. 1415, 1423-24 (1991) (quoting Michael
Grossberg, Governing the Hearth: Law and
Family in Nineteenth Century America 209
(1985)).]
The broader effect of the nineteenth-century statutes was to
create divergent treatment of children based on their birth
status. Children born of wedded parents received the paternal
surname; children born of unwed parents received the maternal
surname. "This assumption of matriarchal surnames paralleled the
then traditional view that an unmarried woman possessed greater
rights to the child as opposed to the putative father." M.D. v.
A.S.L., supra, 275 N.J. Super. at 533.
Despite significant gains, twentieth-century American women
continued to confront gender-based obstacles. The ability of
women to achieve financial and legal independence suffered under
the "common-law fiction that the husband and wife are one. This
rule has worked out in reality to mean that though the husband
and wife are one, the one is the husband." United States v.
Yazell,
382 U.S. 341, 361,
86 S. Ct. 500, 511,
15 L. Ed.2d 404,
415 (1966) (Black, J., dissenting). American law reflected the
subordinate role of women by deferring to the superior status of
the father in naming his legitimate child, noting that "[f]rom
time immemorial it has been the custom for male children to bear
the family name of their father throughout life." Kay v. Kay,
112 N.E.2d 562, 567 (Ohio Ct. Common Pleas 1953); see also Doll,
supra,
35 How. L.J. at 229 ("This practice of paternal name
derivation, through centuries of adherence in the United States,
became intertwined with American culture and law."). American
courts have described that customary right as one of "inherent
concern" to the father, Robinson v. Hansel,
223 N.W.2d 138, 140
(Minn. 1974), as "the [father's] right to expect his kin to bear
his name," Sobel v. Sobel,
46 N.J. Super. 284, 287 (Ch. Div.
1957), as a "natural and commendable desire of the father to have
his children bear and perpetuate his name," Clinton v. Morrow,
247 S.W.2d 1015, 1018 (Ark. 1952), and as a "natural right [of
the father] to have his son bear his name," De Vorkin v. Foster,
66 N.Y.S.2d 54, 54 (Sup. Ct. 1946). See In re Shipley, supra,
205 N.Y.S.
2d at 589 (noting cases that "refer to a 'natural,'
'fundamental,' 'primary' or 'time honored' right"). One early
activist described the "natural right" of men to name their
children as derived from the maxim that what a man owns, he may
name; what he names, he owns:
In 1922, Ruth Hale, advocate of women's
right to determine their own names and co-founder of the Lucy Stone League, in
discussing the basis for men's demand that
women take their husbands' surnames,
articulated the underlying basis of men's
expectation that they have the absolute right
to name their children:
Custom said, too, that man owned what he paid
for, and could put his name on everything for
which he provided money. He wrote his name
more often than a little boy with chalk signs
his to a fence. He put it on his land, his
house, his wife and children, his slaves when
he had them, and on everything that was his.
[Priscilla R. MacDougall, The Right of Women
to Name Their Children, 3 Law & Ineq. J. 91,
138 (1985) (footnote omitted).]
Only the father who "wilfully abandons and neglects his young and
helpless progeny, and ignores his responsibility to them, may
well be deemed to have no natural paternal desires--and therefore
to have forfeited his normal rights--to the perpetuation of his
name." In re Sloan,
118 N.Y.S.2d 594, 596 (Sup. Ct. 1953); Doll,
supra,
35 How. L.J. at 233 ("It was generally agreed that the
only time a father could 'forfeit' his right to perpetuate his
surname was through some misconduct towards the child, such as
willful abandonment.") (footnote omitted).
The twentieth century, however, has produced dynamic social
change. Specifically, "[p]rogress toward marital and parental
equality has accelerated in recent years," In re Schiffman,
supra, 620 P.
2d at 581, and women have overcome the vast majority
of the traditional forms of legal subordination. "This court
[has found] that the society in which we live today is
purportedly neither maternal nor paternal. The principle of
gender neutrality is evident in the laws as administered by the
courts of New Jersey and throughout the legal system; great
efforts have been generated to further this concept." K.K. v.
G.,
219 N.J. Super. 334, 337 (Ch. Div. 1987). The New Jersey
Legislature has, in various contexts, taken steps to remedy past
gender-based differences in the rights and responsibilities of
parents and spouses. Most relevant are the fields of paternity
and custody. In 1983 the Legislature adopted the New Jersey
Parentage Act (the Act), which was modeled on the Uniform
Parentage Act promulgated by the National Conference of
Commissioners on Uniform State Laws in 1973. L. 1983, c. 17
(codified at N.J.S.A. 9:17-38 to -59). The Act governs paternity
proceedings in this State, providing both procedural and
substantive law. In enacting the law, the Legislature stated:
"The New Jersey Parentage Act is intended to establish the
principle that regardless of the marital status of the parents,
all children and parents have equal rights with respect to each
other . . . ." Assembly Judiciary, Law, Public Safety & Defense
Committee, Statement to Senate Bill No. 888, at 1 (Oct. 7, 1982).
"Under the Parentage Act the 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." In re Baby M,
109 N.J. 396, 453 (1988). The Act
also eliminated legal differences between children born in a
marriage and children born out of wedlock, following a line of
United States Supreme Court decisions "mandating equality of
treatment between legitimate and illegitimate children."
Assembly Judiciary, Law, Public Safety & Defense Committee,
supra, Statement to Senate Bill No. 888, at 1.
Seven years later, the Legislature reaffirmed this principle
of equality in the context of custody. In 1990, the Legislature
substantially amended the laws governing custody, finding that
when a marriage dissolves 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. L. 1990, c. 26, § 2 (codified at N.J.S.A. 9:2-4). The
Legislature determined that "[i]n any proceeding involving the
custody of a minor child, the rights of both parents shall be
equal." Ibid. The Legislature also deleted the preference
extended mothers in disputes among parents who have separated but
have not divorced, a presumption that provided that "[t]he minor
child when in the actual care and custody of the mother in such
cases, shall not be taken by the father of such child forcibly or
against the will of the mother from her custody." L. 1990, c.
26, § 1. Moreover, the Legislature, in defining the word
"parent", struck the phrase "but the word parent shall not
include the father of an illegitimate child." L. 1990, c. 26,
§ 3.
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. Sex-based presumptions, such as the "tender years"
doctrine, that had survived as a matter of custom for decades,
have been replaced by an inquiry focused on the happiness and
welfare of the child. See In re Baby M, supra, 109 N.J. at 453
n.17. Courts are required to engage in meticulous fact-finding
to determine the "best interests" of the child. See N.J.S.A.
9:2-4(c); In re Baby M, supra, 109 N.J. at 453 n.17. "The 'best
interests' doctrine is applied in almost every legal disposition
involving minors: custody, adoption, abuse and neglect,
guardianship, termination of parental rights, and even
disposition following juvenile court proceedings." Seng, supra,
70 Va. L. Rev. at 1313-14 (footnote omitted). Today, "the best
interests of the child" is the applicable standard governing most
decisions affecting the welfare of children. See In re Baby M,
supra, 109 N.J. at 453.
That standard is also the one that we apply in determining
the appropriate surname to be given to a child, regardless of the
child's birth status. See In re Rossell, supra, 196 N.J. Super.
at 114-15; In re Schiffman, supra, 620 P.
2d at 583 ("Adoption of
a 'best interest' test is but an evolutionary change in the
state's rules for resolving parental disputes over children's
surnames."); In re Saxton,
309 N.W.2d 298, 301 (Minn. 1981)
("[O]nce a surname has been selected for the child, be it the
maternal, paternal, or some combination of the child's parents'
surnames, a change in the child's surname should be granted only
when the change promotes the child's best interests."), cert.
denied,
455 U.S. 1034,
102 S. Ct. 1737,
72 L. Ed.2d 152 (1982);
Kathryn R. Urbonya, Note, No Judicial Dyslexia: The Custodial
Parent Presumption Distinguishes the Paternal from the Parental
Right to Name a Child,
58 N.D. L. Rev. 793, 799 (1982) ("By
discarding the presumption that the father has a primary right to
have his child bear his name, courts could attempt to resolve the
naming dispute in terms of the child's best interest test.").
However, despite the steps legislatures and courts have
taken to eradicate gender-based differences, some courts
nevertheless rely on traditional presumptions that obscure a
clear evaluation of what constitutes the child's best interests.
Those courts have continued to favor the retention and use of the
paternal surname by treating the child's best interests as
synonymous with the father's best interests. "In resolving
disagreements between parents regarding their child's surnames,
the 'best interest of the child' test has customarily been
defined in terms of the father-child relationship." In re
Schiffman, supra, 620 P.
2d at 585 (Mosk, J., concurring); see
also Urbonya, supra, 5
8 N.D. L. Rev. at 796-97 ("In attempting to
resolve name disputes, courts frequently borrow the words
'child's best interests' from custody case law and then ascribe a
different connotation to these words. Courts generally interpret
the child's best interest in terms of the patronymic naming
system.") (footnote omitted). For example, the Indiana Court of
Appeals has stated that "all agree that the welfare of the child
is the paramount consideration in deciding whether a child's name
should be changed over the opposition of one parent," D.R.S. v.
R.S.H., supra, 412 N.E.
2d at 1263, but in determining what
constituted the welfare of the child, the court concluded that
"[f]irst, significant consideration is given to the father's
interest in having his child bear the paternal surname in
accordance with tradition." Ibid.; see also Flowers v. Cain,
237 S.E.2d 111, 113 (Va. 1977) (noting with approval "the recognition
by other courts of a father's interest in having his child
continue to use his name and of the proposition that this
parental interest is relevant to a determination of the child's
best interest"); In re Lone,
134 N.J. Super. 213, 220 (Law Div.
1975) ("[T]o the extent the [paternal] 'right' recognizes the
father's interest in maintaining his relationship with his child
for their mutual benefit, it becomes highly relevant."); Seng,
supra,
70 Va. L. Rev. at 1339 ("The need to preserve the father-child bond is the reason most often given for the paternal
surname presumption.").
We do not accept the preference that some courts accord to
paternal surnames in the context of determining the best
interests of the child. See, e.g., Bobo v. Jewell,
528 N.E.2d 180, 184-85 (Ohio 1988) ("We . . . refrain from defining the
best-interest-of-the-child test as purporting to give primary or
greater weight to the father's interest in having the child bear
the paternal surname."). The 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. As one
author found: "[T]his impairment of the father-child relationship
had been an assumption by the courts, and fathers had not
introduced circumstantial or scientific evidence of harm. More
significantly, children and fathers frequently testify that they
would not love each other less if the child bore a different
surname." Doll, supra,
35 How. L.J. at 234 (footnote omitted);
see also Seng, supra,
70 Va. L. Rev. at 1339 ("[T]his rationale
for the paternal surname presumption confuses the child's best
interests with the father's need for a symbol."). Accordingly,
in resolving disputes over surnames we apply the best-interests-of-the-child standard free of gender-based notions of parental
rights.
Courts applying the best-interests-of-the-child standard consider a number of criteria in determining the advantages and detriments to a child of assuming either the maternal or paternal surname. Those factors include 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. See M.D. v. A.S.L., supra, 275 N.J. Super. at 535; In re Schiffman, supra, 620 P. 2d at 583; Cohee v. Cohee, 317 N.W.2d 381, 384 (Neb. 1982); Bobo, supra, 528 N.E. 2d at 185; In re Richie, 564 A.2d 239, 241 (Pa. Super. Ct. 1989); Urbonya, supra, 58 N.D. L. Rev. at 799-800.
Courts have experienced difficulty, however, in applying the
factors underlying the best-interests-of-the-child standard,
possibly because of the speculative quality of the inquiry into
the effect that the chosen surname would have on the future
welfare and happiness of the child. One author commented that as
a result of the vagueness of the standard, "judges have proposed
different and frequently conflicting subjective factors for
deciding whether a particular name is in a child's best
interests--factors that lead to inconsistent resolutions of
child-naming controversies." Laura Anne Foggan, Note, Parents'
Selection of Children's Surnames,
51 Geo. Wash. L. Rev. 583, 595-96 (1983) (footnote omitted).
To enhance the predictability of the best-interest standard,
some commentators have suggested, and a few courts have adopted,
a presumption in favor of the surname chosen by the custodial
parent. See id. at 597-98 ("By deferring to the custodial
parent's choice of a surname, courts could minimize their
subjectivity in determining whether a child's surname is
suitable."). "The custodial parent presumption [is] not new."
MacDougall, supra, 3 Law & Ineq. J. at 147. That presumption is
rooted in a basic principle of family law--that the parent having
physical custody of the child is generally accorded broad
responsibility in making daily child-rearing decisions. The
custodial parent is presumed to act in the best interests of the
child in discharging that obligation, an assumption based on the
"practical ground that the parent in daily contact with the child
is better able to make [daily] decisions about his welfare."
Seng, supra,
70 Va. L. Rev. at 1311. Because the courts award
custody on the sole basis of the child's best interest, the
custodial parent presumably would be acting in the best interest
of the child when he or she names the child. See Urbonya, supra,
5
8 N.D. L. Rev. at 805 ("[T]he right to select or change a
child's name logically coexists with other custodial rights. To
resolve the naming dispute, a court need not reevaluate the
traditional factors comprising the child's best interest test
because the award of custody creates the presumption that the
custodial parent's decision is in the child's best interests.")
(footnote omitted). Justice Mosk of the California Supreme
Court, concurring in In re Schiffman, supra, viewed the custodial
parent's decision in naming the child as "at most . . . just one
in a long list of ingredients contributing more or less to the
child's well-being and adjustment in society," 620 P.
2d at 584,
and advocated the recognition of a judicial presumption in favor
of the custodial parent's choice of surname:
Since the law has long recognized the
ability and the right of the parent with
custody to choose among the innumerable
alternative courses involving the child's
welfare, I can see no rational reason to deny
that parent a similar right to select the
name with which the child will be more
comfortable.
Thus I would recognize a presumption that the parent with custody--whether custody was assumed without conflict, by agreement or
by court order--has acted in the child's best
interest in selecting the name. The
selection may be the original name, or a name
change for a child of tender years.
See also State ex rel. Spence-Chapin Servs. to Families and
Children v. Tedeno,
421 N.Y.S.2d 297, 300 (Sup. Ct. 1979) ("[T]he
significant consideration is that the mother has custody and it
is she who will be the primary caretaking figure and who will
make the major decisions . . . ."); MacDougall, supra, 3 Law &
Ineq. J. at 147 ("Adoption of the presumption follows logically
from the divorce courts' exercise of jurisdiction over the naming
of children as incidental to children's care, custody, and
control."); Seng, supra,
70 Va. L. Rev. at 1310 ("The paternal
surname presumption is also inconsistent with the long-standing
principle of custody and guardianship law that gives the
custodial parent or guardian the right to direct the child's
upbringing. If anyone other than the child deserves the right to
determine the child's name, perhaps that person should be the
custodial parent.").
Some states have adopted statutes or regulations that
delegate the choice of surname to the custodial parent. Kentucky
statutory 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." Ky. Rev. Stat.
Ann. § 213.046(8)(a) (Michie 1994). In the parallel context of
children born in wedlock but whose parents are separated or
divorced at the time of the child's birth, Pennsylvania
regulations state: "If 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." 28 Pa. Code §
1.7(b) (1975). See In re Schidlmeier,
496 A.2d 1249, 1252 (Pa.
Super. Ct. 1985) (interpreting 28 Pa. Code § 1.7(b) and
concluding that legislative "policy embodied in Section 1.7(b)
fairly and practically allocates the responsibility for choosing
a newborn child's surname" and is consistent with right of the
custodial parent to make decisions affecting the best interests
of the child). New Hampshire statutory language mirrors the
Pennsylvania provision. N.H. Rev. Stat. Ann. § 126:6-a(I)(a)
(1993).
To the extent that the subject has been addressed in New
Jersey, regulations promulgated by the New Jersey State
Department of Health provide that if either parent is
unavailable, the choice of name is to be made by the custodial
parent. N.J.A.C. 8:2-1.3(a)1. If both parents have custody but
disagree on the name, the child shall be given a hyphenated
surname based on alphabetical order. N.J.A.C. 8:2-1.3(a)2.
The presumption that the parent who exercises physical
custody or sole legal custody should determine the surname of the
child is firmly grounded in the judicial and legislative
recognition that the custodial parent will act in the best
interest of the child. Accordingly, we adopt a strong
presumption in favor of the surname chosen by the custodial
parent. However, we readily envision circumstances in which the
presumption could be rebutted. A young child who has used the
non-custodial surname for a period of time, is known to all by
that surname, expresses comfort with the continuation of that
surname, and maintains frequent contact with the non-custodial
parent might be ill-served by the presumption that the assumption
of the custodial surname would be in his or her best interests.
Although we accord the presumption substantial weight, it is not
irrefutable.
The non-custodial parent bears the burden of demonstrating
by a preponderance of the evidence that despite the presumption
favoring the custodial parent's choice of name, the chosen
surname is not in the best interests of the child. 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. See Bobo, supra, 528 N.E.
2d at 184-85; In re
Schidlmeier, supra, 496 A.
2d at