Emma v. Evans, 424 N.J. Super. 36 (App. Div.), certif. granted, 210 N.J. 217 (2012). Before Judges Fisher, Baxter and Nugent. Opinion by Fisher, P.J.A.D.
Issue 1: When divorced parents have joint legal custody and a child is born in wedlock, does the Parent of Primary Residence (PPR) have a presumption in his/her favor in a change of name dispute?
Holding 1: No. The court reasoned: (a) the presumption creates a bias in favor of the maternal surname since the PPR is normally a woman, (b) if you have a presumption, the parties will litigate the “PPR” label, (c) the parties had agreed to joint legal custody which encompasses a change in a child’s surname, and (d) the court distinguished cases that preserved the presumption in children born out of wedlock. The court reaffirmed the best interest standard for a change of name proceeding. Roman v. Adely, 182 N.J. 103 (2004), set forth the relevant factors:
1. The length of time the child uses the surname.
2. The identification of a child as part of a family unit.
3. The anxiety or discomfort a child may experience if he/she uses a different surname
from the custodial parent.
4. The child’s preference.
Issue 2: Was it reversible error to file the change of name proceeding in the family court rather than a separate action under N.J.S.A. 2A:52-1?
Holding 2: No. All that matters is notice and the opportunity to be heard. Viola v. Fundrella, 241 N.J. Super. 304 (Ch. Div. 1990), is overruled.
Holst-Knudsen v. Mikisch, 424 N.J. Super. 590 (App. Div. 2012). Before Judges A.A.
Rodriguez, Ashrafi and Fasciale. Opinion by Ashrafi, J.A.D.
Issue: What is the standard and burden of proof for an application to change a child’s surname?
Holding: Good cause is not the standard. The standard was articulated in Gubernat v. Deremer, 140 N.J. 120 (1995) and Roman v. Adely, 182 N.J. 103 (2004). The standard should be “best interest” with a strong presumption that the name selected by the primary parent is in the child’s best interest. In determining best interest the court should consider: (a) the length of time the child used the surname, (b) the identification of the child as a member of the family unit, (c) the anxiety or embarrassment child may experience if child uses surname different that custodial parent, (d) the preference of the child. The court also envisioned rebuttal of the presumption if the child used the surname of the non-custodial parent for a period of time, the child’s comfort of the surname and frequent contact of the child and non-custodial parent.
The court rejected Emma v. Evans, 424 N.J. Super. 36 (App. Div. 2012) which held that the presumption doesn’t apply to children born in wedlock.
David M. Wildstein is a senior shareholder in the New Jersey law firm Wilentz, Goldman & Spitzer P.A., and chair of the firm’s Family Law Team. He has exclusively practiced family law for over 40 years, been a member of several New Jersey Supreme Court Committees that have shaped the rules and procedures for family law in this State, and lectures to lawyers and judges at the New Jersey Institute of Continuing Legal Education.