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February 08, 2012

New Jersey Court: Presumption That Child Should Share Last Name Of Custodial Parent Does Not Apply To Children Who Were Born “in Wedlock”

            When a one parent, over the objection of the other natural parent, files a legal name change petition on behalf of a minor child, courts in New Jersey utilize the "best interest" standard in deciding whether to grant the name change application.  Under New Jersey case law, the factors to be considered by the Superior Court in deciding whether a proposed name change is the minor child’s best interest include:

  • The length of time that the child has used one surname;
  • The identification of the child as a member of a family unit;
  • Potential anxiety, embarrassment or discomfort that the child may experience by having a different surname than the custodial parent; and
  • The child’s preferences

             In 1995, the Supreme Court of New Jersey ruled that there was a general presumption that a child’s best interest was best served when the child has the same surname as the custodial parent.   The Court reasoned that “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."  Gubernat v. Deremer, 140 N.J. 120 (1995).

             Last month, in a decision entered on January 20l2, New Jersey’s Appellate Division limited the application of the presumption in favor of the custodial parent.  Specifically, the Court held that where the natural parents were married at the time of the subject child’s birth, there is no presumption in favor of either party. Each party (both the primary caretaker and the noncustodial parent) has an identical burden of proof as to the child’s surname.  Emma v. Evans, 2012 WL 162711.

             Typically, New Jersey name change applications for minors are file by custodial parents (in most instances, mothers) so that their children can share their surname.  In instances where minor name change petitions are opposed, the objection is, in most instances, by the non-custodial, natural father of the subject child.  The NJ Appellate Division’s recent decision gives such fathers greater leverage in stopping the proposed change in the child’s last name.

By:     Marc A. Rapaport, Esq.
          February 7, 2012

About the Author: Marc Rapaport is a NJ Divorce Lawyer who handles matrimonial matters throughout New Jersey and New York.  Mr. Rapaport is the founder and principal of Rapaport Law Firm PLLC, a full-service matrimonial law firm based in New York City’s Empire State Building. 


New Jersey Court: Presumption That Child Should Share Last Name Of Custodial Parent Does Not Apply To Children Who Were Born “in Wedlock”