Name Game: Can Your Ex Change Your Child’s Name?

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What’s in a name? That which we call a rose by any other name would smell as sweet.

That was a very lovely thing for Juliet to say to Romeo, but the truth is that a name is a big deal–especially when it’s your child’s name and your ex wants to change it.

A recent decision by the Superior Court of New Jersey, Appellate Division, addressed the question of whether the primary custodial parent has the right to change the surname of the former couple’s children. You can read the entire opinion, Emma vs. Evans, here, but I’ll summarize.

Paul Emma and Jessica Evans divorced in 2010. They agreed to joint custody, with Jessica designated as the primary residence/physical custodian and Paul as the alternate residential custodian. Trouble started when Paul noticed on school forms that the children were being referred to as “Evans-Emma.” He filed a motion complaining that he had not been consulted about this, as required by their joint custody agreement. She responded by filing a motion to have the children’s names changed just to “Evans.” He argued that the surname had been chosen when they were married and she had no legal right to change it. He said, she said, indeed. Let the Name Game begin.

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A lower court agreed with Jessica, however, basing their decision on a previous case regarding a couple who had a child out of wedlock. In that case, the child had been given the mother’s surname at birth, as the father had little involvement with the mother or child. As he became more involved, though, with visitation rights and legal joint custody granted, he asked for, and was granted by the court, a change in the child’s surname. The mother appealed and won. The decision in that case rested on the “best interests of the child,” taking into account factors such as the length of time the child had been using the mother’s surname and the primary identification of the child as part of the mother’s family unit.

The Superior Court overturned the lower court’s decision and agreed that the children’s surname could not be changed without the permission of the other parent. Here’s the reasoning:

1) The guidelines of the out of wedlock case were not intended for cases where the parents were married;

2) Since statistics show that mothers are overwhelmingly the primary custodial parents, following the guidelines of the earlier case would create a gender bias towards the mother’s name;

3) The original last name was chosen through a joint decision of both parents, who were in a committed relationship, with the intent that it would be permanent;

4) Allowing flexibility in changing the name of the child could result in it becoming a bargaining chip for issues such as financial support or visiting time.

It’s possible that this could go to the Supreme Court of New Jersey for another try, so this may not be the last word on the issue. The lesson here really is to always do your best to get joint custody, so you have some legal ability to fight back against any decisions your ex makes about your children you really feel are wrong for them.

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Of course there are other questions here–can the primary custodial parent appeal to the court for a child’s name change if the parent with that surname is notorious in some way, such as someone involved in criminal activity? Can it be argued that the name has become an embarrassment or danger to the child? What if a child has a really bad relationship or no relationship with the parent with whom he or she shares a surname? Can a minor appeal to the court to have that name changed, or would the child have to wait until adulthood? It’s a fascinating issue, and one you should discuss with your divorce lawyer.

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