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There is perhaps no greater opportunity for courts to state their philosophies or to become instruments of social change than in cases involving the surnames of children of divorced and unmarried parents.

Take the March 29, 2011 Second Department case of Matter of Eberhardt. In that case, Mariah, the now nine-year-old daughter of Michelle Esquenazi and John Eberhardt, was born out of wedlock.  At the time of her birth, Mariah’s parents had been in a committed relationship and for a number of years and lived together with the mother’s three children from a prior marriage. Mariah’s birth certificate reflected the sole surname of her father. The father had acknowledged paternity. The parties’ intended wedding never took place. Approximately 1½ years after the child’s birth the father moved out. The mother maintained physical and legal custody, and the father visited regularly in accordance with an arrangement sanctioned by the Family Court.

In 2008, Ms. Esquenazi petitioned to change the child’s surname to Esquenazi-Erberhardt. Nassau County Supreme Court Justice Karen Murphy conducted a hearing at which the parties disputed the extent to which the father had been made aware that the child had been using the hyphenated surnames since age 2, and the extent of his protests once the use was known. Justice Murphy denied the mother’s petition, crediting the father’s testimony. Justice Murphy found that the objections of the father, who was emotionally and financially a part of Mariah’s life, were reasonable. The name change, Justice Murphy ruled, benefited the mother, not the child. To rule otherwise would reward the mother for her self-help and her knowing violation of the proper procedures for a name change under Civil Rights Law §§60 through 63.

A Second Department panel of three women and one man reversed, holding the father’s objections were not reasonable. Rather, his objections were raised to teach the mother a lesson. Moreover, the benefits to the child would not be denied simply to punish the mother for her self-help. Distinguishing the cases in which a mother was seeking to change the child’s surname to that of the mother, eliminating the father’s surname, the Second Department disagreed with Justice Murphy, and held:

[T]he emotional and financial involvement of the father is not a bar to a change to hyphenated surnames.

As a matter of social philosophy, the Court ruled:

[N]either parent has a superior right to determine the surname of the child. . . . [T]he objection must relate to the child’s best interests or bear on the parent’s relationship with the child, and the father failed to articulate, nor could he, how the patronymic custom was relevant to either of those concerns. . . . [W]e do not accord preference to paternal surnames in the context of determining the best interests for the child . . . . [emphasis added]

The Court went on to list of eight (nonexclusive) factors to be considered. Not ironically, almost all of those factors are promoted by self-help. The Court further stated:

The use of the hyphenated name will be a symbolic reminder of, and source of identification and association with, both her father and her mother, the mother having always been the child’s custodial parent. The hyphenated name will also be a reminder of the ethnic heritage of both parents, as well as her half-siblings on each side . . . .

There may be no more important power than the power to name. Recognizing this dates at least to biblical times.  As one blogger put it:

God gave Adam dominion over all the creatures, and as evidence of that dominion, Adam was asked to name all the animals (and name Eve, too). This passage [Genesis 2:19] is frequently used by some religions to argue that women cannot be priests, and is often pointed to by feminists as proof of patriarchy – the pervasive culture of dominion of MAN over all creatures, including woman. Because the power of naming is dominion – control, authority.

As Professor Thomas Gasque of the University of South Dakota stated in his lecture, The Power of Naming (lecture.pdf):

It was customary for a long time in our Western society to restrict the power of a woman to control her own naming destiny, when she was compelled to take the name of her husband at marriage. Some scholars date the beginning of the end of this custom to 1856, when a Massachusetts woman named Lucy Stone, who had married Henry Blackwell a year earlier and had become Mrs. Henry Blackwell, decided to go back to her original name. Although it was tradition and not actual laws that prohibited this, anytime she signed a legal document, she was required to add “wife of Henry Blackwell” to her birthname signature. This went on for years. When in 1879 it became legal for women in Massachusetts to vote for members of the school committee, she signed the register under the name Lucy Stone, and the Board of Registrars disallowed it. Lucy Stone was famous in her day, and generally considered a threat to morality and the American way, but her influence led to the creation in 1918 of The Lucy Stone League, devoted to the right of women to determine their own identities (Stannard 114-18). In our time, when it has become almost the norm for women, especially in professional positions, to keep their own names, Lucy Stones struggle seems quaint. But the custom of requiring the use of the husband’s name sent a very strong message to women. The tradition identifying a woman by prefacing her husband’s name with Mrs., says Claire Culleton, gives her a name which

has only one marker that distinguishes it from her husband’s name, one marker that indicates that she is not her husband [. . .]. Any name acquired through marriage, then, identifies the woman in terms of what she is not. Linguistically and semantically, the title Mrs. acts as a marker to identify what is not there: since the title Mrs. has always declared gender, when placed before the name of the husband, Mrs. declares the absence of the phallus since it feminizes the name that follows. The wife becomes, by name, an inferiorized version of her husband, a Mrs. Him. She shares his identical name, but she is forever diminished because the name is not her own. Thus, the married woman metamorphoses into a forgery of the husband. (73)

I don’t mean to say, of course, that women should keep their birth names when they marry; that would also deprive them of a basic right. The women’s movement has empowered women to make their own choices. Self-naming is one of the most important symbolic and actual dimensions of that empowerment.

In her 2004 decision in Matter of Thurman, Civil Court Judge Ann E. O’Shea thought that in contested name cases, there should be a rebuttable presumption in favor of the child being known by the custodial parent’s surname. In that case, Judge Shea ruled in favor of the mother-custodian:

While Geovana has been known for the six years of her young life by her father’s name, it is unlikely that she has yet developed such a proprietary interest in that name that the presumption should be overcome. Nor, at this point in Geovana’s life should a name change cause any significant confusion that would overcome the presumption. In fact, since the evidence establishes that it is her mother and her mother’s family-who come into contact with all the other people and entities involved in Geovana’s life, having her share her mother’s name should diminish the possibility of confusion. Finally, Geovana’s father has presented the court with no evidence of any other consideration that would diminish the presumption that she should carry her custodial parent’s surname or that his objection is reasonable.

That philosophy would seem to have been shared by Kings County Supreme Court Justice Arthur M. Schack in the 2006 decision, Wilson v. Kilkenny, who dealt with a change-of-name request of a three-year-old:

Petitioner, in the instant action, has failed to present any valid reason why the best interests of the child would be served by changing the child’s surname from “Kilkenny” to “Wilson” or “Kilkenny Wilson.” Petitioner’s Irish-American heritage, professional qualifications, religious affiliation and membership in the Ancient Order of Hibernians are laudable, but do not overcome the fact that Mr. Wilson has never had custody of Claudia. Claudia has always lived with her mother. As she gets older, and goes to school and interacts with other children, the use of her mother’s surname will minimize any embarrassment, confusion and possible harassment. Changing Claudia’s surname to “Wilson” or “Wilson Kilkenny” could potentially harm the child. It appears that the actual purpose of the instant petition is to inflict pain upon the respondent, not promote the best interests of Claudia.

However, in Matter of John Phillip M.-P. , the Second Department in 2007 reversed the denial of a father’s petition to change the child’s surname of a hyphenate of the child’s mother’s maiden name and the child’s stepfather’s surname, and changed the surname to that of the father. At the same time, the court changed the child’s middle name from the stepfather’s first name to the mother’s maiden name. The Court held:

The mother’s objection that the child bearing a surname different from hers, where she is the custodial parent, similarly is not a sufficient basis to deny the father’s petition, given how common such an occurrence is in today’s society.

In two cases decided in 2004 in Matter of Grier, Queens County Supreme Court Justice Jeremy Weinstein came to different conclusions based on his fact-sensitive analysis. The Court recognized that:

Depriving a child of his or her surname is normally a far-reaching action and is usually granted only where the natural father is guilty of misconduct, abandonment or lack of support.

Justice Weinstein, in one case, denied a change to the mother’s name where the father was attempting to maintain andfoster a relationship with his child, but in the second case, denied the objections of a father who had only nominally contacted and supported his child.

Outside of the Civil Rights Law change-of-name arena, the courts have considered fathers’ actions in equity to compel mothers to use the names as stated in birth certificates. In one case, the court exercised its equitable powers to prohibit a mother from using her maiden name, even informally, as the child’s surname. Githens v. Van Orden, 1998 N.Y. Slip Opin. 98473, 177 Misc.2d 918, 677 N.Y.S.2d 705 (Sup. Ct. Erie Co. 1998), affirmed 256, A.D.2d 1247, 682 N.Y.S.2d 649 (4th Dept. 1998). In another case, such equitable relief was denied a father who had delayed making his application. Casolaro v. Krupka, 281 A.D.2d 504, 721 N.Y.S.2d 799 (2nd Dept. 2001).

It is common for divorce settlement agreements to contain provisions barring changes in the names of the children. Such a provision is enforceable.  For example, Gershowitz v. Gershowitz, 112 A.D.2d 356, 491 N.Y.S.2d 356, a 1985 decision of the Second Department, the court upheld the father’s objection to a change of the child’s name to add a hyphen between his middle name (the mother’s maiden name) and his last name (the father’s surname). In the parties’ separation agreement it was provided that wife was “not to change the surname of the child, formally or informally, without the husband’s express, written assent thereto.” The Court held that the insertion of the hyphen changed the child’s last name, and reversed.  The lower court had denied the father’s request by holding that there was no change of name, and that “it is increasingly common for a child to be known by his mother’s maiden name as well as that of the father.”

What lessons may be learned. Self-help works. Protecting your name requires diligence. Diligence requires involvement (what’s wrong with that?).

Should the courts reflect society’s values or should they lead? The strict constructionists might object to courts granting of the power to name, wanting such to be only a function of legislative determination. Doing so in New York, which just became the last state in the union to grant no-fault divorces, might not be the best way to go. However, legislative action is invited.

Parents divorce. Agreeing on the children’s name should be a function of any divorce resolution. Perhaps it should even be a routine provision of the Judgment of Divorce: that the children shall be known by no other name than as recited therein. Parents have children out of wedlock. Having both parents involved in raising their children, continuing to co-parent in an environment of mutual respect and appreciation, is a laudable if not idealistic goal. How can you fault the courts’ pursuit of that ideal?