Whose Last Name Does the Child Carry Post-Divorce?
In New Jersey as in other states discussing children and parenting legal issues, the tradition of a child taking his or her father’s last name was once the standard. In recent years, however, the courts have set a new standard for names, this one is based on what the best interests of the child might be. The court is quite firm that this standard has no relationship to gender-based traditions: that is, it’s not automatic that children should carry their father’s name, if it can be shown that this isn’t in the child’s best interest.
When might it be in the best interest of the child to change names? The Superior Court has listed 4 key factors to be considered in applying this best-interests standard:
1. The length of time that the child has used one surname. A child who is very young (under age 3, for instance) probably does not know its paternal surname, and likely would not remember having a different name, so changing names, i.e., after a divorce, wouldn’t harm this child. A preschool- or school-age child, however, might be confused by being told that he’s no longer Timmy Smith but is now Timmy Jones, or might find him- or herself in awkward social situations with friends, relatives, and acquaintances as a result. Courts are therefore less likely to permit name changes in older children, except in certain situations.
2. The identification of the child as a member or part of a family unit. An example of this factor might be a child who bears his mother’s surname, but goes to live in his father’s household as per the child custody agreement. If his father, his father’s wife, and their children all carry the same surname, changing the child’s surname to the father’s surname might help the child integrate better into his or her new family. We saw this example discussed in a New Jersey divorce case study of Emma vs. Evans.
3. The potential anxiety, embarrassment, or discomfort the child might experience if the child bears a surname different from the custodial parent. Teachers, coaches, ministers, parents of friends, and other passing acquaintances in the child’s life are likely to simply assume that a child and the parent he or she lives with have the same name—which means the child may be put in the position of having to correct them when they use the wrong surname. This can be stressful to children of any age, and might be one reason the court would permit a name change.
4. Any preferences the child might express, assuming the child possesses sufficient maturity to express a relevant preference. It should be understood that no judge will change the child’s name simply because the child says that’s what he or she wants, nor is there a particular age at which the child’s maturity level is automatically considered “high enough” by the judge. And if none of the other three factors are in play, it’s unlikely that the child’s wishes alone will sway the judge.
In short, if you want to change your child’s name to match your own, you’ll need to present a solid rationale for why such a change would benefit your child. Otherwise, it’s not likely that the court will accept your petition.
