After a divorce, is the custodial parent entitled to a presumption that her decision to change the children’s surname is in their best interests? Yes, says the trial court. No, says the Supreme Court.

In the case at hand, Emma v. Evans, decided on Aug. 12, a couple divorced after 11 years and the birth of two children, who were given their father’s surname, Emma.

The property settlement agreement (PSA), which was incorporated into the judgment of divorce and provided for joint legal custody, designated the mother (Jessica, who resumed her maiden name, Evans) as “the primary residential/physical custodian,” and the father (Paul) as “the alternate residential parent.”

Although the PSA was silent as to any change in the children’s surname, Jessica unilaterally changed it on health and school records to Evans-Emma.

When Paul filed a postjudgment motion to prevent the change, Jessica cross-moved to change it from Emma to Evans. In granting Jessica’s cross-motion, the trial court relied on the Gubernat v. Deremer presumption that the name chosen by Jessica was in the children’s best interests.

The appeals court properly reversed, distinguished Gubernat, abolished the presumption in favor of the custodial parent and held that the appropriate test is what is in the best interests of the children.

The Supreme Court, in affirming, pointed out that Appellate Division Judge Clarkson Fisher Jr.’s thoughtful opinion provided six valid reasons for that decision:

Gubernat, which involved children born out of wedlock, did not hold that the presumption applies to children born in wedlock;

• the presumption, in favor of the custodial parent, has been rejected by many states;

• the presumption improperly favors mothers because 82 percent of divorces result in the mother being named the primary residential custodian;

• the presumption should not apply where the children are named by married parents who intend the name to be permanent;

• the presumption could become a bargaining chip when negotiating a parenting schedule; and

• joint legal custody agreements require the parents to share major decisions regarding the children’s welfare.

The Supreme Court noted that the choice about a child’s name is “a major decision. …One’s name is a signboard to the world. It is one of the most permanent of possessions; it remains when everything else is lost; it is owned by those who possess nothing else…when one dies it is the only part that lives on in the world.”

For this reason, the court held that “a surname change for a child in such circumstances deserves a searching inquiry into the child’s best interests.”

In upholding the appeals court decision not to give the custodial parent the upper hand when renaming the children, the Supreme Court pointed out that “claims of the natural father and the natural mother are entitled to equal weight.”

Because joint legal custodians are required to make important decisions together, where they can’t agree, and the responsibility falls to the court, they should start “with equal rights—without either party benefiting from a presumption in favor of his or her choice of names.”

Having sat in the Family Part for four years, I have decided numerous issues on which parents could not agree, including child support, alimony, equitable distribution, custody, parenting time, pick-up and drop-off responsibilities, public v. private school, relocation of the custodial parent, retirement accounts, vehicles, medical benefits, credit card debts, roof expenses, the value of homes and businesses, and even custody of pets. However, I cannot think of an issue more significant than choosing a child’s name.

Certainly, in deciding such an issue, a court should not be handcuffed by some archaic principle. As the Supreme Court noted, “the face of the modern American family is vastly different than that of as recent a time as the mid-Twentieth Century.”

In order to be respected, our courts must change with the times. This decision demands respect because it places the best interests of children above the desires of two adversarial parents.

Some attorneys may agree, as I do, and others may disagree with this decision. However, all attorneys handling family cases must agree that the opinion is instructive: to avoid postjudgment renaming problems, the PSA should include who has the right to rename the children and what names are acceptable. •