Lawyers argued at the state Supreme Court Tuesday over whether children who live primarily with their mother after their parents’ divorce should be presumptively given her surname.
A Burlington County judge had granted the mother’s motion to change the children’s names in Emma v. Evans, A-2303-10, but the Appellate Division reversed in a published decision, finding the judge had misinterpreted two precedential Supreme Court rulings.
The appeals panel said Gubernat v. Deremer, 140 N.J. 120 (1995), and Ronan v. Adely, 182 N.J. 103 (2004) — which replaced the traditional bias in favor of paternal surnaming with a gender-neutral, best-interests standard — did not mandate that a presumption in favor of the parent of primary residence (PPR) be applied whether or not the child was born in wedlock.
The appeals court found that such a presumption would skew the determination in favor of the maternal surname since, in most cases, the PPR following a divorce is the child’s mother.
"We, therefore, think it unlikely that the Court intended to replace a gender-biased standard that favored the paternal surname with a gender-biased standard that favors the maternal surname in cases where the parents named their children while married," the panel said.
Jessica Evans’ lawyer, Lynda Yamamoto, asked the justices on Tuesday to reinstate the trial judge’s decision, saying the courts should continue to "eliminate thousands of years of gender discrimination."
Responding to questions from Justice Anne Patterson, Yamamoto acknowledged that most PPRs are mothers — about 82 percent nationwide and 75 percent in New Jersey.
But Yamamoto said she believed it had been the hope of the Gubernat and Ronan courts that, over time, more fathers would be named PPRs.
Patterson asked whether the likelihood of settlements between divorcing parents would be reduced if it appeared that a PPR would move to change the children’s surnames after property settlement agreements were signed.
Yamamoto said she did not think that would be so, noting that surnames, like other issues, can be subject to pre-divorce negotiations. One possibility, she said, would be hyphenated surnames.
Justice Barry Albin appeared to disagree, suggesting there might be less inclination for a father to agree that the mother should be the parent of primary residence. "From a tactical standpoint, it might be better to fight it out," he said.
Paul Emma’s lawyer, Richard Klineburger III, said the court should not easily accept arguments from those who advocate the change of surname based on which parent is the primary caregiver.
"The moving party makes it seem like it’s something simple, like it’s just a name. If it was just a name, we wouldn’t be here," said Klineburger, of Haddonfield’s Klineburger & Nussey.
Changing children’s surnames, he said, is something that should be discussed beforehand.
Albin asked whether there should be a presumption in favor of the parent of primary residence.
Klineburger said that would have to be discussed and agreed to before any PSA is signed. Changing a surname could be an option, as could a hyphenated name. "But it should not be done postjudgment," Klineburger said.
Patterson asked what should happen if the motion for a surname change is in fact made postjudgment.
"Then there should be a greater burden on the moving party to show the need for it," Klineburger replied. "There should be a presumption in favor of the given surname."
Klineburger disagreed with Yamamoto’s assertion that there would not be a drop in settlements before trial.
"Our family courts are all burdened up as it is," he said. If the court adopts the policy sought by Evans, "everyone will be fighting for those magic three letters — PPR — because that will give you the ability to change the last name."
The ruling in Gubernat gained notoriety not only for its outcome. A week after the court announced its ruling adverse to him, Alan Gubernat shot and killed his 3-year-old son, Scott, before shooting and killing himself.
Michael Booth is a reporter for the New Jersey Law Journal, a Legal affiliate.