by Corrine Evanochko Cooke, Esq.
In 1995, the New Jersey Supreme Court rejected a long-standing custom favoring a child assuming the father’s last name automatically. In Gubernat v. Deremer, the Court held that, when parents do not agree what last their child should have, the Court must determine which name is in the best interests of the child. 140 N.J.120 (1995). This determination begins with a "strong presumption" that the name selected by the custodial parent is in the child’s best interest.
That decision was further affirmed by the New Jersey Supreme Court in 2004 in the case of Ronan v. Adely, 182 N.J. 103 (2004). The Supreme Court affirmed the presumption in favor of the custodial parent’s choice of last name and clarified that the non-custodial parent has the burden of rebutting the presumption-i.e. showing that the name set forth by the custodial parent is not in the best interests of the child. The Court further emphasized that, in rebutting the presumption, the non-custodial parent should address the following factors in showing that the last name set forth by the custodial parent is not in the best interest of the child: (1) the length of time the child has used one surname; (2) the identification of the child as a member of a family; (3) the potential and anxiety, embarrassment and discomfort the child might experience if the child has a different surname than the custodial parent; and (4) any preference the child might express assuming the child is of sufficient age.
It is important to note that both of the children in both Gubernat and Ronan were born out of wedlock, i.e. the parents of the child were never married. In an unpublished (non-precedential) decision rendered in January of this year, the Appellate Division decided the issue of whether the presumption set forth in Gubernat and Ronan applied where the parties were previously married, and the children were born during the marriage. In Emma v. Evans, after the parties’ divorce, the mother sought to change the child’s last name from the father’s last name to her last name. The Appellate Division, in that case, affirmed the best interest of the child test regardless as the child’s birth status, but rejected the presumption in favor of the parent of primary residence when children are born in wedlock. In that case, even though the mother was the custodial parent, the Appellate Division held that she was not entitled to the presumption because the child was born when the parents were still married.
A different Appellate Division Panel issued a published (precedential) decision on March 6, 2012, addressing the same issue addressed in Emma v. Evans, but rejected the conclusion reached in Emma v. Evans that held that the presumption established by Gubernat does not apply to children that were born when the parents were married.
In Holst-Knudfen v. Mikish, the Appellate Division clarified that the Supreme Court’s Decision in Gubernat did not differentiate between children born out of wedlock and those born to married parents. Accordingly, the Panel held that the presumption set forth in Gubernat in favor of the last name proposed by the custodial parent applies to all cases –– whether or not the child is born out of wedlock or to married parents. That Panel also clarified that, the current law states that it is the non-custodial parent’s burden to rebut that presumption by addressing the relevant factors and showing that the last name is not in the best interest of the child.
However, the Appellate Decision in Holst-Knudfen v. Mikish found some merit in the issues that the Panel in Emma v. Evans found with the presumptions set forth in Gubernat, and essentially, invited the Supreme Court of New Jersey to make new law. The Panel asked the Supreme Court to differentiate between cases where the parents have entered into a detailed settlement agreement and cases where the parents did not have a settlement agreement –– despite their marital status at the time the child was born. The Panel noted that, even in cases where the parents were never married, they may enter into settlement agreements outlining the parenting time, responsibilities, child support obligations, etc. –– and perhaps those settlement agreements may even address which parent’s last name the child shall assume. The Appellate Division in Holst-Knudfen v. Mikish further suggested that if the parties have expressed a position in their settlement agreement regarding the child’s last name, then the Court should enforce that agreement. On the other hand, if the agreement is silent with respect to the child’s surname, the Appellate Division in Holst-Knudfen v. Mikish suggested that perhaps the parties should be on neutral ground rather than proceeding with the presumption in favor of the parent of primary residence (who in many cases are women) – so as to not unfairly advantage either parent. In the event that the Supreme Court adopts this reasoning, then cases where the parents have settlement agreements that are silent on the issue of the child’s last name would be determined by a straight best-interests-of the child determination.
In lieu of these conflicting decisions issued only two short months apart, it seems that the issue of the presumption set forth in Gubernat as it applies to persons that have a negotiated settlement agreement –– despite their marital status at the time of the child’s birth –– may be an issue that comes before the Supreme Court of New Jersey before long.
As always, it is important to consult with an experienced matrimonial attorney if you have any questions regarding any of these cases, or wish to enter into a settlement agreement outlining your rights and responsibilities as a parent.
Corrine E. Cooke is an associate in divorce group of Stark & Stark, 993 Lenox Drive, Lawrenceville. www.stark-stark.com