When divorced parents have joint legal custody and a child is born in wedlock, how will the Court address one parent’s desire to change the child’s surname?
In the recently decided case of Emma v. Evans, the Court eliminated the previous presumption in favor of the parent of primary residence’s surname. Emma v. Evans, 424 N.J. Super. 36 (App. Div.). certif. granted, 210 N.J. 217 (2012). The Court reasoned that the presumption created a bias in favor of the maternal surname because the parent of primary residence was frequently the mother. The Court cited the public policy concern that if a presumption in favor of the parent of primary residence continued to exist then this presumption would likely lead to parties litigating the “parent of primary residence” label. Though the presumption in favor of the maternal surname was eliminated for children born in wedlock, the Court distinguished this case from those in which a child was born out of wedlock. The Court preserved the presumption in favor of the maternal surname of the parent of primary residence in cases in which the child at issue was born out of wedlock.
After eliminating the past presumption, the Court reaffirmed the best interest standard and acknowledged that the factors set forth in Roman v. Adely would continue to be utilized in a change of name proceeding. 182 N.J. 103 (2004).
In accordance with the Court’s ruling, the relevant Roman v. Adely factors that the Court will consider in a change of child’s surname application to the Court are as follows:
•1. The length of time the child uses the surname.
•2. The identification of a child as part of a family unit.
•3. The anxiety or discomfort a child may experience if he/she uses a different surname from the custodial parent.
•4. The child’s preference.