When parents decide to change their child’s last name and are in agreement, the process of the name change is quite simple. That is not the topic of this blog. Rather, the topic is what to do and what happens when the parents cannot come to agreement and the court makes the ultimate decision on your child’s last name.
New Jersey Courts apply a standard set of factors to name change cases regardless of whether or not the parties were ever married. In addition to those factors, the court applies additional standards if the parties never were and are not now married, giving preference to the name choice of the parent with whom the child primarily resides.
IN ALL CASES, NEW JERSEY COURTS APPLY THE FOLLOWING FACTORS
- How long has the child used his or her current surname.
- The child’s identification as a family member or as part of a family unit;
- Whether the child will experience any potential anxiety, embarrassment or discomfort if the child and custodial parent have different surnames. This is only considered for the parent given a presumption of surname. See below for details on presumption;
- The child’s preference, in the event he or she is old enough to express a preference;
- The court’s application of any additional factors it chooses to consider.
IF PARENTS NEVER MARRIED, COURTS APPLY THE FOLLOWING FACTORS
The custom and law for many decades demonstrated a strong bias toward using the father’s surname for children. That custom and law, in New Jersey, experienced a near reversal in a 1995 case involving a child’s surname and unmarried parents. As a result of that case, the presumption of choice of surname has shifted to that of the parent with sole legal, or exercising physical, custody. In the massive percentage of these cases, that is the surname of the mother.
MARRIED PARENTS: NO PRESUMPTION OF SURNAME
The question of surname of a child of a married couple did not come before the New Jersey higher courts until a January, 2012 decision. In legal terms, this is an extremely new decision and time will tell how it is interpreted and applied by lower courts. This case removed any presumption in favor of the parent with sole legal, or exercising physical, custody. That factor is simply not considered with children of a married or previously married couple.
This 2012 case also indicated that any custody agreement or order between married, or formerly married, parents that addresses the issue of surname must be considered. Now, “consideration” does not a guarantee that the court will stick to any agreed terms, but it speaks in favor of a stronger argument that agreement terms might be upheld.
There are several different methods by which a name change can be legally made. For every method, the courts apply the same standards and factors. In principle, the result will be the same whether you bring the name change under the name change statute, if you bring the action in Family Court on its own or whether you choose to address it as part of your custody or divorce action. The important part of your action is that you have representation by experienced and knowledgeable counsel.
If you need to discuss last name change for a child in NJ, call the Law Offices of Peter Van Aulen for a free consultation at 201-845-7400.