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Paul Emma v. Jessica Evans

January 20, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-800-09Z.

The opinion of the court was delivered by: Fisher, J.A.D.



Argued October 18, 2011

Before Judges Fisher, Baxter and Nugent.

The opinion of the court was delivered by FISHER, J.A.D.

"What's in a name?"*fn1 In this appeal, we examine the propriety of a presumption in favor of the parent of primary residence*fn2 when seeking, over the other parent's objection, a change in the surname of their two children. In two cases --Ronan v. Adely, 182 N.J. 103 (2004) and Gubernat v. Deremer, 140 N.J. 120 (1995) -- the Court authorized application of a presumption in the PPR's favor in name-change disputes when the child was born out of wedlock. In this matter of first impression, we reject the adoption of such a presumption when the child was born in wedlock to parents who subsequently divorce.

The parties married in 1999 and children were born to the marriage in 2006 and 2007; at birth they were given their father's surname. The parties separated in late 2008 and a judgment of divorce, which incorporated a property settlement agreement (PSA), was entered on January 21, 2010. The parties agreed in the PSA that they would exercise joint legal custody; Jessica was designated "the primary residential/physical custodian" and Paul was designated "the alternate residential parent." The original parenting schedule called for the children to reside with Paul on alternating weekends, as well as overnight visits every Thursday night to Friday morning, and four hours each Tuesday evening.

In late 2010, Paul filed a motion, seeking an alteration in the parenting schedule. As relevant to the appeal, Paul also asserted that Jessica had unilaterally attempted to alter the children's surname, providing evidence that school records and health insurance information identified the children's surname as "Evans-Emma"; he sought an order directing Jessica to cease any unilateral modifications of the children's surname. Paul also claimed this change had not been discussed, as would have been expected because the PSA called for joint legal custody; his communications demanding a return to the status quo were not heeded. Jessica cross-moved, seeking, among other things, a change of the children's surname "from Emma to Evans." Paul responded, arguing that the children were born while the parties were married and were then given the surname Emma, that there was no principled reason for a change in that status, and that any change could only occur by following the statutory procedure.

The trial judge rejected Paul's arguments and entered an order changing the children's surname to Evans. Paul appealed, arguing, first, that our jurisprudence does not establish a presumption in favor of a PPR's choice of surname when children are born in wedlock. We agree.



In its landmark decision in Gubernat, the Court considered the principles to be applied by a court in resolving disputes about a child's surname between unmarried parents. The child in Gubernat was born out of wedlock and given the mother's surname. Id. at 123. The father refused to acknowledge paternity but in subsequent legal proceedings was found to be the biological father and permitted visitation. Ibid. Later, the father was provided with additional parenting time and an order was entered awarding joint legal custody, while the mother maintained physical custody of the child for the majority of the time. Id. at 125. The trial court also ordered that the child assume the father's surname. Ibid. The mother appealed the name change and we affirmed. Id. at 125-26.

In reversing, the Supreme Court recognized that "Western custom and law spanning more than six centuries" favored a preference for paternal surnames, id. at 122, but the Court also determined that, as progress shifted toward marital and parental equality, society had evolved to a point that it is now "'purportedly neither maternal nor paternal,'" id. at 137 (quoting K.K. v. G., 219 N.J. Super. 334, 337 (Ch. Div. 1987)), and concluded that a best-interests-of-the-child standard must be applied "in determining the appropriate surname to be given to a child, regardless of the child's birth status," id. at 139. The Court held that the factors to be considered in applying this best-interests standard include the length of time that the child has used one surname, the identification of the child as a member or part of a family unit, the potential anxiety, embarrassment, or discomfort the ...

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