AFTER DIVORCE, CHILD WANTS TO CHANGE LAST NAME

MATTER OF DZ (" G"), 2021 NY Slip Op 21282 - Suff Co. Supreme Court 2021:

"JAMES HUDSON, J.

The Petitioner and Respondent have two different last names that both begin with the letter Z. To preserve the privacy of the parties, they will be referred to as Ms. DZ and Mr. SZ. Their daughter will be referred to as "G."^[1]

The matter at hand is a petition brought by Ms. DZ to change the surname of "G" to Ms. DZ's current married name (Civil Rights Law Sec.60 et. seq.). Additionally, the Petition seeks to change "G's" middle name. The Petitioner Ms. DZ and the Respondent Mr. SZ were married in 2006 and divorced in 2008. Prior to their separation, however, the couple was blessed with a daughter "G" who is now 14½ years old. On her Birth Certificate the child was given the Respondent's surname. "G's" Father, Mr. SZ has opposed the application.

The differing averments of the Petitioner and Respondent could only be resolved in an evidentiary hearing (In re Kobra, 46 Misc 3d 54, 56, 2 N.Y.S.3d 313, 314 [App. Term. 2nd Dept. 2014]). On August 20th, 2021 the Parties appeared before the Court and gave testimony. Prior to hearing from Ms. DZ and Mr. SZ, however, the Court heard the testimony of "G".

The Court was concerned that asking "G" to speak in front of her Parents would place an inordinate emotional burden on her. It has long been established that in custody proceedings the trial Court possesses the authority to interview a child outside of the presence of their parents (Lincoln v. Lincoln, 24 NY2d 270, 247 N.E.2d 659, 661 [1969]). In the case In re Eberhardt, 83 AD3d 116, 920 N.Y.S.2d 216 (2nd Dept. 2011), this rule was expanded to include name change petitions.

"Pietas erga parentes"^[2] or in the modern tongue "reverence towards one's parents" is a timeless virtue despite it being described by the immortal Cicero in antiquity. The Court notes this because "G's" testimony (which has been sealed pursuant to a companion Order) revealed a young person who possesses this virtue in abundance. She loves her parents very much and is also highly intelligent. Her outstanding academic achievements are a credit to them. In a lengthy interview, she was able to clearly articulate her observations and feelings concerning the petition.

Ms. DZ testified in open Court after her daughter spoke in camera (Transcript p.60). She stated, inter alia, that she and her current husband Mr. JZ, have raised "G" from "when she was a toddler" and identifies as a member of his family (Transcript p.60). It was detailed that it's upsetting for "G" to have to explain her different last name on her passport. "G" uses her mother's current married name at home and wants to start High School with the same last name as her half siblings in the custodial household. Ms. DZ spoke of her husband's fatherly interaction with "G." By way of example, Mr. JZ has attended all of "G's" soccer matches, taught her to ride a bicycle and taken her fishing (Transcript p.64). Ms. DZ emphasized that her marriage with Mr. SZ only lasted six months. After the marriage ended, Mr. SZ had supervised visitation for a period of time which was exercised in an "inconsistent" fashion (Transcript p.66). "G's" first sleep over with her Father occurred when she was 10 (ten) years old and the child has expressed a reluctance since that time for visits with Mr. SZ. She also indicated that Mr. SZ never regularly paid child support and is now $8,500.00 in arrears. Ms. DZ also submitted documents for the Court's review (Petitioner's Exhibits 1, 2 and 3).

Petitioner's Exhibit 1 is a printout of a series of text messages between the Petitioner and Respondent. It demonstrates the acrimonious relationship between the former spouses. They read in pertinent part:

(The following dialogue took place after Ms. DZ communicated "G's" wish to have her surname changed):

Ms. DZ: "This is "G's" wish."

Mr. SZ: "So you want me to pay 1200/month Not see or hear from her and have her change her last name." (sic)

Ms. DZ: "Nothing to do with what I want. If you don't consent the paper work is being filed but it would be great to get your consent for "G."

Mr. SZ: "Take me off child support and I'll sign it. I guess you have your answer then."

Petitioner's Exhibit 2 is a document indicating that Mr. SZ is $8,500.00 in arrears for his child support payments.

Petitioner's Exhibit 3 was a printout of Mr. SZ's criminal record. It indicated that on August 31st, 2006 he had committed the Misdemeanor of Assault 3rd Degree and pled guilty to same on May 23rd, 2007. The Exhibit also indicated that on January 30th, 2007 he had committed the Misdemeanor of Reckless Endangerment in the 1st Degree, to which he also pled guilty onMay 23rd, 2007. There is also a more recent conviction (by plea of guilt) to the Misdemeanor of Reckless Driving. All of these offenses occurred in our sister State of Connecticut. Ms. DZ contends that there was a history of domestic violence between herself and Mr. SZ during their brief marriage.

Mr. SZ did not object to these documents being received into evidence.

Mr. SZ then offered his testimony before the Court. He also submitted documentary Exhibits consisting of papers attached to his written opposition to the Petition. They were considered, over Petitioner's objection as Respondent's evidence.

Mr. SZ strongly objected to "G's" last name being changed. He stated:

"I don't want to give up on my daughter. I don't want her to say, oh, Dad, where were you? But it's become so just difficult. I've been to Court, hired lawyers, seen therapists, drug counselors, police, jail. It's like when is it ever going to end? It's like the nightmare that doesn't go away. So, I don't want to leave "G" I don't want her not to know me. She doesn't refer to me as Dad. She calls me [by his first name]. And, I guess I put her in the situation, so I can't be that upset. But, her mother just makes it worse" (Transcript p.85-86).

Mr. SZ gave instances of his attempts to contact his daughter which were blocked by his ex-wife. This culminated (in 2020) in his bringing an action to hold Ms. DZ in contempt of Judge Budd's Order of Custody and Visitation dated May 31st, 2012. His documentary Exhibit, however, does not support his allegation of wrong doing on Ms. DZ's behalf. The submitted papers are silent on the topic of parental alienation. Instead, they demonstrate that Mr. SZ was subjected to supervised visitation, under the aegis of Dr. Vanessa Gomez, being Ordered by the Court (Transcript pp.8-11).

These documents included the following:

(1) The Judgment of Divorce granted in Connecticut on May 2nd, 2008 by Justice Mary Louise Black. The Judgment incorporated a Separation Agreement with provisions for custody and visitation;

(2) The Custody and Visitation Order from Suffolk County Family Court (Judge Marlene Budd) dated May 31st, 2012. The Court awarded custody to Ms. DZ but provided for alternate weekend visitation as well as certain other Holidays. This Order also provided, inter alia, that Ms. DZ had to consult with Mr. SZ for all significant (e.g. health, education) decisions and;

(3) motion papers dated May 13th, 2020 from Suffolk County Family Court reflecting an application by Mr. SZ to have Ms. DZ punished for contempt of the 2012 Custody and Visitation Order. This was resolved in supervised visitation for Mr. SZ being Ordered by the Court (Transcript pp.8-11).

Regarding the significance of Mr. SZ's criminal convictions brought to the Court's attention he stated: "Most of my criminal record there that you see in your paperwork is when she's called the police on me. And some of it's true, some of it's not true" (Transcript p.85 line 10). To this the Court responds "Habemus optimum testem, confitentem reum" (1 Phil. Ev. 397) (1). "We have the best evidence, a confessing defendant." We respectfully remind Mr. SZ that his confession to the criminal behavior listed above was made before a Judge, historically the most favored form of admission (see Sir Michael Foster, Discourse on High Treason, Article 3, Section 3, Clauses 1 and 2 [1762]). The Court was concerned when Mr. SZ volunteered that the incidents involved Ms. DZ. Far from being a mitigating factor, they weigh against the Respondent. Having sat in the Matrimonial Part, the Court is sadly aware of the circumstances which precipitate a failed marriage. Disagreement and discord are understandable. Domestic abuse, however, is not, nor is it tolerable.

As to the issue of Mr. SZ's child support arrears, he offered the following explanation:

"I've been paying my child support. I don't pay now because I'm so fed up with it and so angry. She doesn't let me talk to her; she doesn't let me see her. When she refers to me, she calls me. I'm not good enough for her, her mother, whatever it is. So, I'm-I'm liable to pay every month. My money is good enough to take, but I'm not good enough to let her let me see her. So, that's why I don't feel like paying" (Transcript p.87 line 9-19).

Mr. SZ said that Ms. DZ had improperly influenced "G" against him and that this Petition was the product of his ex-wife's manipulation of their child. Mr. SZ then stated that he had, in fact been paying his child support payments for years and that "there's always been money" in the bank account set up for that purpose (Transcript p.90 line 19). This prompted a question from the Court:

"The Court: So, are you in arrearages or not?"

Mr. SZ: "I'm in arrearage, yes, but that's only because she got me so aggravated that I don't feel like paying."

The Court: "Have you been able to pay?"

Mr. SZ: "Yeah, I've been able to pay." (Transcript pp.90-91).

Since the testimony of the Petitioner and the Respondent are at a variance, the Court must sift the differing averments and find the truth.

Determination of the credibility of witnesses is viewed as the province of the Trial Judge (Morales v. Inzerra, 98 AD3d 484, 949 N.Y.S.2d 433 [2nd Dept. 2012]; Tornheim v. Blue & White Food Prod. Corp., 88 AD3d 867, 931 N.Y.S.2d 340 [2nd Dept. 2011]). Based upon the estrangement between Petitioner and Respondent, the Court is cognizant of the bias that informs both of their sworn statements. Each testified as truthfully as they could, but it is understandable that they remember their interactions with advantages. The documentary proof submitted by both the Parties, however, serves to support the contentions of Ms. DZ more than Mr. SZ.

In deciding whether to grant a Name Change Petition the Court must make the following determination: "that the petition is true, and that there is no reasonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the interests of the infant will be substantially promoted by the change" (Civil Rights Law § 63).

In re Eberhardt, supra. offers great guidance to the Court: "As in any case involving the bests interests standard, whether a child's best interests will be substantially promoted by a proposed name change requires a court to consider the totality of the circumstances." (Id. at 221) citing Matter of John Phillip M.-P., 41 AD3d 720, 721, 839 N.Y.S.2d 502 [2nd Dept.2007]; Matter of David Robert T., 10 AD3d 453, 780 N.Y.S.2d 912 [2nd Dept.2004]; Matter of Cinquemani v. Guarino, 290 AD2d 554, 736 N.Y.S.2d 623 [2nd Dept.2002]; see generally Eschbach v. Eschbach, 56 NY2d 167, 171, 451 N.Y.S.2d 658, [1982]).

What does totality of the circumstances mean? The Eberhart Court counseled the lower Court as follows:

"Among the myriad of factors or circumstances that a court may consider in determining whether a proposed name change substantially promotes the child's best interests, there are several that warrant special mention:

(1) the extent to which a child identifies with and uses a particular surname;

(2) the child's expressed preference, if of sufficient age and maturity to articulate a basis for preferring a particular surname;

(3) whether the child's surname differs from the surname of the custodial parent;

(4) the effect of the proposed name change on the child's relationship with either parent;

(5) whether the child's surname is different from any of her siblings and the degree to which she associates and identifies with siblings on either side of her family;

(6) whether the child is known by a particular surname in the community;

(7) the misconduct, if any, of a parent, such as the failure to support or visit with the child; and

(8) the difficulties, harassment, or embarrassment that the child may experience by bearing the current or proposed surname." (Id. at 221).

In setting forth these factors, the Eberhardt Court noted that these were non-exhaustive and relied (as do we) on the authority found in Matter of John Phillip M.-P., supra. at 318-319; Gubernat v. Deremer, 140 N.J. at 141-142, 657 A.2d 856; In re Wilson, 162 Vt. 281, 285, 648 A.2d 648; In re Change of Name of Andrews, 235 Neb. 170, 177, 454 N.W.2d 488; Bobo v. Jewell, 38 Ohio St.3d 330, 335, 528 N.E.2d 180; In re Marriage of Schiffman, 28 Cal.3d at 647, 169 Cal.Rptr. 918, 620 P.2d 579).

It must be decided if Mr. SZ's objection to the Petition is a reasonable one. The Court is aware of a body of case law which holds that the Father's name is to be considered preeminent (see Matter of Goldstein, 104 AD2d 616, 479 N.Y.S.2d 385 [2nd Dept. 1984]; Matter of Pollack, 2 AD2d 756, 756, 153 N.Y.S.2d 282 [2nd Dept. 1956]; In re Petras, 123 Misc 2d 665, 672, 475 N.Y.S.2d 198, 203-04 (Civ. Ct. Queens Cty 1984]). These cases bear examination. The Court in Matter of Goldstein opined that:

"Depriving a child of his or her father's surname is normally a far-reaching action [cite omitted] Applications for the change of an infant's surname are usually granted only where the natural father is guilty of misconduct, abandonment, or lack of support (Id.at 616) citing Matter of Williams, 86 Misc 2d 87; Matter of Robinson, 74 Misc 2d 63; Matter of Fein, 51 Misc 2d 1012; Matter of Baldini, 17 Misc 2d 195; Matter of Wittlin, 61 NYS2d 726, 728." (Id. At 616)

Matter of Pollack, supracautioned that: "To deprive a son of his father's surname is a serious and far-reaching action." (Id. at 756)

In re Petras, 123 Misc 2d 665, 672, 475 N.Y.S.2d 198, 203-04 (Civ. Ct. Queens Cty 1984) echoed Pollack's declaration that: "Deprivation of a father's surname is a serious and far reaching action." The Petras Court added the rationale: "More so in our American society with respect to a male child that normally carries a surname throughout life." (Id. at 672).

The Court notes that the aforementioned cases are not of recent vintage and reflect a bias in favor of the patronymic. Such a cultural practice, when privately agreed upon, will not be disturbed. When haled into Court, however, the neutral appraisal of the law cannot countenance what is simply gender discrimination. As stated in In Re Eberhardt:

"To the extent the father's objection was based on traditional values, meaning that it is Anglo-American custom to give a child the father's name (see Gubernat v. Deremer, 140 N.J. 120, 129-137, 657 A.2d 856; In re Marriage of Schiffman, 28 Cal.3d 640, 643, 169 Cal.Rptr. 918, 620 P.2d 579; Rio v. Rio, 132 Misc 2d 316, 317-322, 504 N.Y.S.2d 959), the objection is not reasonable, because neither parent has a superior right to determine the surname of the child (see Swank v. Petkovsek, 216 AD2d 920, 629 N.Y.S.2d 129; Matter of Bell v. Bell, 116 AD2d 97, 99, 500 N.Y.S.2d 387; Matter of Cohan v. Cunningham, 104 AD2d 716, 480 N.Y.S.2d 656; Rio v. Rio, supra. at 319." (Id. at 123).

When the enumerated Eberhardt factors are applied against a fair reading of the submitted proof, all favor the Petitioner's request and bear no further discussion save two: the effect of the proposed name change on the child's relationship with either parent and the misconduct, if any, of a parent, such as the failure to support or visit with the child. These will be analyzed ad seriatim.

As noted above, the corroborated testimony of Ms. DZ show that "G" identifies as a member of Mr. JZ's family and wishes to have the same name as her half-siblings. As Justice Luft wrote in her eloquent opinion Matter of Mark L.S., 66 Misc 3d 343, 115 N.Y.S.3d 627 (Sup. Ct. Suffolk Cty 2019): "As a rule, feelings of embarrassment or alienation are considered extremely pertinent factors in the best interests analysis" (Id. at 346; citing In re Altheim, 12 AD3d 993, 784 N.Y.S.2d 910[3d Dept. 2004]).

Matter of Mark L.S. is in accord with the holding in Matter of Caraballo, 13 Misc 3d 1229(A), NY Slip Op. 52054(U), 2006 WL 3041684 [Civ. Ct. NY Cty 2006] wherein the Court stated that sharing the surname by the child with the custodial parent "is a legitimate point of concern because it minimizes embarrassment, harassment and confusion in school and social contacts" (Id. citing Matter of Shawn Scott C., 134 AD2d 345, 520 N.Y.S.2d 821 [2d Dept., 1987]; Learn by Houck v. Haskell, 194 AD2d 859, 598 N.Y.S.2d 595 [3d Dept., 1993]; Mercado v. Townsend, 225 AD2d 555, 638 N.Y.S.2d 762 [2d Dept., 1996]; see also In re Kobra, 37 Misc 3d 1216(A), 961 N.Y.S.2d 358 [Civ. Ct. Kings Cty 2012], appeal granted, order rev'd, 46 Misc 3d 54, 2 N.Y.S.3d 313 [App. Term. 2014]).

It must be conceded that the Court in Trevellian v. Wilson, 19 Misc 3d 137(A), 866 N.Y.S.2d 96 [App. Term 2008] reached a contrary conclusion on the basis that: "[i]t is no longer uncommon in today's society for a child to have a different surname than that of a parent, and, to the contrary, it has become commonplace for siblings to have different surnames." (Id.). This Court finds the facts of the instant case to be distinguishable from those presented in Trevellian and thus declines to adopt its holding.

The question of misconduct on the part of Mr. SZ mandates close review because he has earnestly and believably expressed deep love for "G" during this proceeding. He has not had the visits with his daughter that he would wish. It appears that this was occasioned both by his own behavior and the actions of his ex-wife. The fact remains that at a critical point in her young life, "G" formed a stronger parental bond with Mr. JZ than with him. Mr. SZ's anguished testimony acknowledges this state of affairs. The ultimate factor, however, is "G's" well-being.

Mr. SZ's testimony regarding the financial support for "G" considerably undermines his position. In the case of Matter of Pollack, supra., the Court was impressed by the Father's promise to pay arrearages in child support when permitted visitation. Here Mr. SZ has made it clear that his good name may be alienated for a price-no further child support. The Court had hoped that this accusation by Petitioner would be denied or explained. Instead, Mr. SZ let it stand unrefuted, thus indicating his agreement. This was corroborated by his words from the witness stand in which he acknowledged both his ability to pay child support and willful refusal to do so based upon his ex-wife's behavior. It is readily apparent that only his daughter suffered as a result of this treatment. To use such behavior in the form of a threat to hang as a financial Sword of Damocles over "G's" head can only be considered misconduct for the purposes of the application. We find this to be a "justifiable basis for changing a child's surname" (In re Cruz, 49 Misc 3d 155[A], 29 N.Y.S.3d 846 [App. Term. 2nd Dept. 2015]).

Considering all of these factors the Court is constrained to find that the forgoing has proven both that there is no reasonable objection to the proposed name change and that "G"'s best interest will be substantially by allowing her to change her middle name and surname this time.

Accordingly, the Petition must be granted.

Simultaneously with the signing of this order, the Court is executing a Name Change Order (Civil Rights Law Sec. 63) and a further Order partially sealing the record pertaining to "G's" testimony (22 NYCRR Sec.216.1).

This Memorandum is also the Order of the Court.

[1] The names have been abbreviated to protect the child's identity

[2] On Moral Duties (De Officiis) Marcus Tullius Cicero. The term "pietas can also be translated as: piety; dutifulness; affection, love; loyalty; gratitude" (Pocket Oxford Latin Dictionary)."