The Case of the Surname Suit

Sometimes, a recently divorced or separated parent wants to change their child’s last name. Typically, it is the mother who wants to change the child’s last name, so the name will be the same as hers. (Who wants to be reminded of a failed relationship every time you look at your kids’ report card?)  This can create quite a controversy if the other parent, typically the father, doesn’t want the name changed. (“You *****!!! What do you mean my son won’t have my last name!”)

The New Jersey Supreme Court has ruled that if the parents cannot agree on a last name, and if they were unmarried when the child was born, then the tie goes to whichever parent the child currently lives with the most. The Court reasoned that although children traditionally take on their father’s last name, this may not be appropriate if the children live primarily with their mother. Rather, for a child born out of wedlock, the best interests of the child suggest that they share the name of the parent that the child spends the most time with. So ruled the Court.

But what about a child who was born to a married couple, who have since been divorced? Recently, a New Jersey appeals court dealt with this issue. The court considered the New Jersey Supreme Court decision about children born to unmarried couples. Nevertheless, because the case before it dealt with the children of a formerly married couple, the appeals court applied a different rule.

The court decided that giving preference to the last name of the parent whom the child lives with the most might not be appropriate.. Since most children end up staying with their mother after a divorce, using the “who has the most time with the child” rule would result in a strong bias in favor of the mother’s last name. Furthermore, when a married couple names a child, they generally do so with the intent that the name be permanent. Finally, the court was concerned that the parent with primary custody might use the rule as a bargaining chip during divorce negotiations, which could potentially threaten the best interests of the child.

Therefore, the appeals court ruled that the question should be decided strictly according to the best interests of the child. This will vary from case to case. There will be no presumption in favor of either the mother’s name or the father’s name.

Then again, the judge could simply ask the kid what he or she thinks.