Law Lessons from Milian v. Elsanhoury, App. Div. (A-6019-06T2; Decided July 8, 2008):

Picture by jack dorsey

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.
[Id. at 111-12.]

[See related Blog Post, published in the New Jersey Family Law blog.]

[See additional information about name change procedures HERE]