On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1322-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester and C.L. Miniman.
Defendant Mohab Elsanhoury appeals from an order of the Hudson County Family Part on July 25, 2007, denying his application for a post-dispositional hearing to change the surname of his daughter from Milian, the surname of the child's mother, to his own surname. We affirm.
The child was born on October 17, 2004. DNA test results indicated the likelihood of defendant being the child's father was 99.99 percent. On November 19, 2004, just over a month after her daughter's birth, plaintiff filed a domestic violence complaint and obtained a temporary restraining order (TRO) restraining defendant from any contact with her or the infant. The TRO was dismissed two weeks later on plaintiff's application, and an order was entered regarding visitation and child support. Joint legal custody was also ordered with plaintiff to remain residential custodian.
On or about June 13, 2007, defendant requested another DNA test, and the results confirmed the earlier finding of defendant's paternity. Defendant then made a motion to change the child's surname to Elsanhoury. Judge Melvin S. Krakov ordered that the birth certificate for the child be amended to identify defendant as her father, but he denied defendant's application to change her surname. Defendant appeals only that portion of the order denying the name change.
An issue not addressed below is whether defendant followed the proper procedure in filing a motion rather than a new complaint. In Basile v. Basile, 255 N.J. Super. 181 (Ch. Div. 1992), it was held that a change of name application cannot be considered in a domestic violence action and that the proper procedure was an action at law pursuant to N.J.S.A. 2A:51-1 and R. 4:71-1. See also Viola v. Fundrella, 241 N.J. Super. 304 (Ch. Div. 1990), holding that a divorced wife could not seek to change her minor child's surname by filing a motion in the divorce action. Nonetheless, we address the substantive issue to give finality to the matter.
Plaintiff and defendant have never been married to each other. When the infant was born, defendant was not present, and he was not named on the birth certificate. Plaintiff has had continuous physical custody of her daughter. Defendant initially disputed his paternity. After the first DNA test more than two years after the child's birth, defendant requested a second test "just for peace of mind." The record indicates that defendant has had visitation with his daughter without difficulty, and there is also no indication that he has failed to make child support payments.
When asked by the motion judge why the surname of the child should be changed, defendant replied, "Well, it's my biological child and we confirmed that, I would like my child to have my name, my last name. . . . I just see that this is unreasonable that she had a child under her last name." Therefore, the only reason given by defendant for the proposed name change was that the child should bear his name because he was the father. As the judge pointed out, there is a strong presumption in favor of the surname chosen by the primary caretaker regardless of the caretaker's gender, because the naming of a child is, like other decisions, properly left with the primary caretaker. Gubernat v. Deremer, 140 N.J. 120, 142-45 (1995). Therefore, the non-custodial parent bears the burden of establishing by a preponderance of evidence that the presumption in favor of the primary caretaker's choice of name is not in the child's best interests. Id. at 145.
In J.S. v. D.M., 285 N.J. Super. 498 (App. Div. 1995), the mother was the primary caretaker of a child born out of wedlock. The father moved to change the child's surname. The trial judge ordered that the child's name and official birth record be changed to make the father's surname the child's middle name. The father appealed, and we affirmed on the basis of Gubernat, supra, 140 N.J. at 120. Moreover, in Ronan v. Adely, 182 N.J. 103 (2004), the Supreme Court reaffirmed the Gubernat standard in a name change dispute, stating:
When the primary caretaker seeks to name or, as here, change the surname of a child, there is a presumption in favor of the primary caretaker that the name selected is in the best interests of the child. That presumption may be rebutted by proof offered by the secondary caretaker that the name change is not in the best interests of the child.
Defendant has made no argument sufficient to rebut the strong presumption that the surname selected by the plaintiff as the custodial parent is not in the child's best interests. His contentions raised on ...