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Gubernat v. Deremer

May 11, 1995

ALAN GUBERNAT, PLAINTIFF-RESPONDENT,
v.
KAREN E. DEREMER, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by Stein, J. Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, and Garibaldi join in this opinion. Justice Coleman did not participate.

The opinion of the court was delivered by: Stein

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

GUBERNAT V. DEREMER (A-66-94)

Argued January 18, 1995 -- Decided May 11, 1995

STEIN, J., writing for a unanimous Court.

Scott Thomas Deremer was born July 4, 1991, the son of Alan Gubernat and Karen Deremer. The parties decided not to marry. Gubernat initially doubted his paternity and was not named on Scott's birth certificate. After Gubernat requested a determination of paternity, blood tests were taken in January 1992. In February 1992, when the blood tests confirmed that Gubernat was the father, he immediately admitted paternity and attempted to establish a relationship with his son.

After informal visitation arrangements resulted in disagreements between Gubernat and Deremer, Gubernat filed the within action. In it, he sought various relief including joint custody and the change of Scott's name to Gubernat. The trial court awarded joint legal custody with liberal visitation rights for Gubernat. In addition, the court determined that Scott should assume his father's surname.

Deremer appealed. After a remand for a clarification of the trial court's findings, the Appellate Division affirmed. It determined that bearing his father's surname was in Scott's best interest. The Supreme Court granted Karen Deremer's petition for certification.

HELD: In contested cases the surname selected by the custodial parent -- the parent primarily charged with making custodial decisions in the child's best interest -- shall be presumed to be consistent with that child's best interests, a presumption rebuttable by evidence that a different surname would better serve those interests.

1. The Anglo-Saxon tradition of surnames dates back to the Norman conquest of England in 1066. Through the middle ages and the colonial period, the use of the father's surname reflected society's legal and cultural attitudes towards women. Illegitimate children were filius nullius, the "son of no one." (pp. 8-20)

2. In the nineteenth century, reformers attempted to rectify the status of illegitimate children by placing the mother and child in a legal family unit. As a result, children born of wedded parents received the paternal name; children born of unwed parents received the maternal name. (pp. 20-23)

3. In recent years, the Legislature has taken various steps to remedy past gender-based differences in the rights and responsibilities of parents and spouses. In so doing, the Legislature has determined that parental disputes about children should be resolved in accordance with each child's best interests. That is the applicable standard governing most decisions affecting the welfare of children. (pp. 24-27)

4. The Court applies the "best interests" standard to determine the appropriate surname to be given a child, regardless of the child's birth status. In applying that standard, the Court declines to accept the preference that some courts have accorded paternal surnames. The preservation of the paternal bond is not and should not be dependent on the retention of the paternal surname; nor is the paternal surname an indispensable element of the relationship between father and child. (pp. 27-30)

5. To enhance the predictability of the best-interest standard, the Court adopts a strong presumption in favor of the surname chosen by the custodial parent. The non-custodial parent bears the burden of demonstrating by a preponderance of the evidence that despite the presumption, the chosen surname is not in the best interests of the child. The rebuttable character of the presumption serves two ends: it protects the right of the custodial parent to make decisions in the best interests of the child; and it permits judicial intervention on a sufficient showing by the non-custodial parent when the decision does not reflect the best interests of the child. (pp. 30-36)

6. The Court acknowledges that as a result of the standard adopted today, numerous children will be authorized to bear surnames that are different from their fathers'. Its assumption is that society has become accustomed to and tolerant of departures from the familiar preference for paternal surnames and that tolerance and acceptance will grow as the practice becomes more common. The Court is firmly convinced that today's decision is not only consistent with the best interests of the affected children but also reflects the significant societal changes in women's rights. (p. 36)

7. In applying the standard adopted today to the facts of this case, the Court concludes that the trial court and Appellate Division erred in granting the requested name change. It is the love of the parent, not the name of the parent, that binds parent and child. (pp. 37-38)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, and GARIBALDI join in JUSTICE STEIN's opinion. JUSTICE COLEMAN did not participate.

STEIN, J.

The question presented by this appeal concerns the right of a father, in cases involving disputes over a child's surname, to insist that the child bear his surname. The issue arises in the context of a child, born to unmarried parents, who was given his mother's surname at birth, the father having refused to acknowledge paternity. When his paternity was established by tests performed approximately seven months later, the father acknowledged paternity and commenced visitation. Shortly thereafter, the father instituted litigation seeking joint custody, increased visitation, and a change of the child's surname. The trial court awarded the father joint custody and increased visitation, but the child's mother retained primary physical custody. The trial court, recognizing "the father's interest in maintaining his relationship with his child for their mutual benefit," ordered that the child assume the father's surname. The Appellate Division affirmed in an unreported opinion.

The recognition by the courts below of a preference for paternal surnames is supported by Western custom and law spanning more than six centuries. The practice of children assuming the father's surname is traceable to the English medieval property system in which the husband controlled all marital property. That preference continued in America, reflecting not only the long-standing English tradition but also the societal distinctions in the status of men and women. Until the latter part of this century, the assumption that children would bear their father's surnames was a matter of common understanding and the preference for paternal surnames was rarely challenged. But the historical justifications that once supported a tradition in the law for children to bear paternal surnames have been overtaken by society's recognition of full legal equality for women, an equality that is incompatible with continued recognition of a presumption that children must bear their father's surname. That presumption shall no longer apply in this State. We hold instead that in contested cases the surname selected by the custodial parent--the parent primarily charged with making custodial decisions in the child's best interest--shall be presumed to be consistent with that child's best interests, a presumption rebuttable by evidence that a different surname would better serve those interests. We apply that rule of law to the facts at hand, and reverse the judgment of the Appellate Division.

I

Scott Thomas Deremer was born July 4, 1991, the son of plaintiff Alan Gubernat and defendant Karen Deremer. The parties decided not to marry. Plaintiff initially doubted his paternity, and was not present at the birth of Scott, nor was he named on Scott's birth certificate. Karen assumed physical custody of Scott and has retained custody throughout. Alan first saw his son in July or August 1991, but "didn't know [Scott] was my son at that time." After plaintiff requested a determination of paternity, blood tests were conducted in January 1992. In February 1992, when the tests confirmed that Alan was the father, he immediately admitted paternity, contacted Karen, and attempted to establish a relationship with his son. Alan and Karen informally arranged for Alan to visit his son two or three times each week.

Subsequent disagreement between the parties regarding the extent of Alan's visitation rights resulted in an order issued by the trial court in March 1992 granting Alan temporary visitation rights, consisting of two hours on Sunday afternoon and two hours on Wednesday evening. Shortly thereafter, Alan instituted this action seeking joint custody of Scott, joint consultation on decisions affecting his education, health, and welfare, greater visitation privileges, and the change of his name to Scott Thomas Gubernat. In May 1992, Alan and Karen agreed to modify Alan's visitation schedule to permit visitation every Sunday from 10:00 a.m. to 5:00 p.m.

In July 1992, the trial court held a hearing on issues related to custody and visitation. Based on proofs presented at the hearing, the court found "as a fact that both parents, both the mother and father, are loving parents of this child." The evidence adduced indicated that Karen had been employed for the past five years by the World Apostolate of Fatima. She testified that she had conscientiously discharged the day-to-day responsibilities of parenthood, that she had borne sole responsibility for Scott's care during infancy, and had received strong support from her family. The evidence confirmed that Alan also enjoyed family support in caring for Scott, both from his parents, who lived next door, and from his sisters. Alan was self-employed as a mason and was described by a construction contractor as reliable, hard-working, and competent. He testified to his close relationships with his sister's children. He stated that during visitation he would play with his son, or take him to visit members of his family. Alan testified that he had purchased equipment that Scott needed, including a stroller, a walker, a baby carriage, and a play pen.

When asked by his counsel why he wanted his son to bear his surname, Alan testified:

Well myself, I would want my son to recognize who his father is. And I know that's not just in the name alone, it's also the time we spend. It is important for me when he deals with other children as he gets older to see that he, yes he does have a father and he has a father who cares and will always be there for him.

On cross-examination, Alan responded that his desire for Scott to bear his surname was intended to assure Scott that he always has a father." Alan stated that by bearing his surname, his son would know that whatever happened in the future, if God forbid if Karen moves to another State or something like that, that . . . he will always have a father and know that he was always there for him or made every attempt to."

Karen testified that she opposed both the imposition of the paternal surname and the use of the hyphenated name Deremer-Gubernat. She explained the basis of her objection: "I believe since the child's birth I have been the primary caretaker of the child. I also feel that it's easier if the child's last name matches my last name. We live in a small local area. The Deremer name is known." The Judge questioned Karen directly whether she ever "expected to get married," because if "some day assuming you get married . . . you would have a situation where you have one name and your child has another name." Karen replied that that was a "difficult question[] to answer under the circumstances," but "right now I can say no."

The trial court awarded Alan joint legal custody of Scott and granted liberal visitation privileges. Additionally, the court determined that the child should assume the surname of the father. The court noted that the "father's desire to have progeny and also to have some one carry on his name is proper. It's a right that the father has." The court determined that the paternal right to name the child carries little relevance if its purpose is in "protecting [the father's] ego or in preserving his perceived male prerogatives," but to the extent "the right recognizes the father's interest in maintaining his relationship with his child for their mutual benefit, it becomes highly relevant." Concluding that the effect on the child of carrying the maternal surname might be to contribute to the child's "[estrangement] from the father who exhibits a desire to preserve a paternal relationship," the court ruled that the child will henceforth be known as Scott Thomas Gubernat. Defendant obtained a stay in order to appeal the decision with respect to the name change. See Rule 2:9-5.

In January 1993, the Appellate Division remanded the matter to the Chancery Division "to permit the aforesaid trial Judge to clarify the findings of fact and Conclusions of law with respect to the furtherance of the best interests of the infant child in effecting a change of the child's surname." In March 1993, the trial court issued an opinion supplementing its prior decision. The court reiterated its determination that the child's interests would not be served by retaining the maternal surname, which could represent to the child a rejection by his father, although the "plaintiff . . . has expressed a continuous and enthusiastic desire to participate actively in the upbringing of his son. The court rejected Karen's "main objection to ...


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