This matter involves the rights of parents in choosing the surname of their daughter born out of wedlock.
Dr. L. is the admitted father and Ms. D the mother of the infant child S. The parents had a relationship over several years which terminated during the mothers pregnancy. Upon the birth of the child the mother chose her former married name as the child's surname. (The mother had previously been divorced and retained her married name as do the three children of that union. All the children are in the primary residential care of the mother.)
The father, Dr. L., objects to this surname and requests that the child bear his surname. He intends to exercise meaningful parental access and has agreed to pay child support in an amount that significantly exceeds the cost of rearing the child. He is a medical practitioner who resides on the West Coast, more than 2500 miles from New Jersey. He has arranged his schedule so as to allow him approximately one full week per month to be with his daughter in New Jersey.
Each of the parents have expressed a genuine desire to have the child assume their surname.
Historically, the use of surnames depended primarily on the status of the children, legitimate or illegitimate. Generally speaking the use of surnames did not become common until about the twelfth century although the practice took different forms in different cultures.
In England, for example, surnames often were nothing more than the addition of a suffix to the father's name, a practice also followed in Scandinavian countries. Thus, David the son of John would be called David Johnson. That practice impeded genealogical tracing because David's son Michael would be known as Michael Davidson. However, the use of the same surname for the life of an individual was not a constant. Surnames often changed based upon the occupation or physical characteristic of a party. In semetic cultures the patronymic method was also the norm. Thus, Abdul Ben Ahmed was Abdul the Son of Ahmed. Some cultures used geography as the basis of surnames. Thus, Mario born in Sicily became Mario Siciliano.
During the reign of Henry VIII a regulation was passed requiring parish records of births, deaths and marriages be kept and indexed under the name of the father. In most instances inheritance of property was contingent upon the heir's retention of the family surname. See In re Snook, 2 Hilt. 566, 589 (C.P. N.Y. City & Cty. 1859.
Given the secondary status afforded to women at those times, it is not surprising that the masculine lineage was chosen. Until the enactment of the Married Women's Acts in the mid 19th century, the husband was the sole legal representative of the marriage. Such a distinction based solely on the sex of an individual would not pass constitutional muster today. See, for example, Reed v Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (holding Idaho statute giving preference to male over a female in administration of an estate unconstitutional).
In modern society, it has been customary for a child to assume the surname of the father just as it has been customary for a woman to adopt her husband's surname upon marriage. But neither of the propositions have any statutory underpinning. Assuming an agreement between the parents, the child's surname can be the father's, the mother's, both, (either hyphenated or not) or any other surname. In short, there is no statutory basis which would mandate a given result.
The history of illegitimate children follows a different naming pattern. At early common law an illegitimate child was known as a "nullius filius", or "son of nobody".*fn1 He acquired the name of neither mother nor father and only assumed a surname later in life based on some factor other than lineage. Over a period of time custom decreed that the child usually assumed his mother's surname. Foundling's were just named. (See Oliver Twist, by Charles Dickens, wherein Mr. Bumble proudly describes his methods of naming children.) This assumption of matriarchal surnames paralleled the then traditional view that an unmarried woman possessed greater rights to the child as opposed to the putative father. Suffice it to say, that concept also fails current statutory and constitutional guidelines. New Jersey, by virtue of the adoption of the Uniform Parentage Act, N.J.S.A. 9:17-38, clearly abolished any distinctions between the rights and responsibilities of parentage predicated solely upon the sex of a particular parent.
Some states, however, by statutory law, require the illegitimate child to assume the mother's surname absent an agreement between the parents. (Florida, Georgia, Indiana, Kentucky, Nebraska, New Hampshire, N.Carolina, N.Dakota, Tennessee and Wyoming.) See Richard H. Thornton, Note, Children's Surnames, 23 Utah L. Rev. 303 (1979). (Query as to whether these statutes would withstand constitutional challenge.)
Accordingly we now find ourselves in a position where these two divergent approaches merge and neither parent is presumptively dominant. Who then names the ...