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Surnames Are a Bone of Contention in Divorce Cases

April 22, 2013 | Posted In Family Law - Divorce |

In a state Supreme Court hearing last month, New Jersey family attorneys presented cases for and against changing children's surnames after a divorce. After a recent trial, Emma v. Evans, A-2303-10, a judge in Burlington County ruled that Jessica Evans had the right to change her children's last names to match her own maiden name following her divorce, but that decision was reversed when her ex-husband, Paul Emma, filed an appeal.

Evans and Emma agreed to share joint custody of their two children when they divorced in 2008. The New Jersey courts designated Evans as the parent of primary residence, or PPR, with Emma as the alternate residential parent. Two years after the initial divorce proceedings, Emma sought to change the joint custody schedule the courts had set up, and claimed that his request was based in part on the fact that his ex-wife had begun changing their children's surnames. He showed the court school and health insurance records that listed the children as Evans-Emma, instead of Emma as they had been previously known.

When Emma's request went to trial, the judge ruled in favor of Evans, giving her the right to change the children's last names to Evans, and drop their father's surname completely, but Emma appealed the decision. He argued that the judge's decision favored his ex-wife because she was the PPR, and that presumption "skew[ed] the determination in favor of the maternal surname, since, in most cases, the PPR following a divorce is the child's mother." New Jersey family lawyers say that about 75 percent of the parents awarded primary residency status in the state are mothers.

The Appellate Division granted Emma's argument, noting the family lawyers' concerns that placing the legal emphasis on the status of PPR would be detrimental to future divorce cases. Parents ran the risk of losing sight of their children's best interests in duking it out to be named primary residential parent. The appeals panel also cited two earlier cases that had set precedents in the state Supreme Court, Gubernat v. Deremer, and Ronan v. Adley. The court noted that these cases overturned the previously unspoken bias that a child was given his father's last name, even a child born out of wedlock. These cases set the precedent for surname change, and the Appellate Court ruled that granting a maternal bias was just as unjust as granting a paternal bias.

Emma's family attorney said that, going forward, New Jersey courts should rule on children's' surnames during the initial divorce trial, to prevent a drawn-out legal battle and eliminate surprises for the involved parties. In his appeal, Emma stressed that the bias should remain with the surname the child was given at birth, and that parents should consider options that update the name, such as a hyphened surname, but not change the name completely. The state Supreme Court will review the decision made by the Appellate court, and the Evans-Emma case in order to make a final, precedential ruling on the power to change a child's surname.

At Helmer, Conley, and Kasselman, PA, the New Jersey family lawyers represent anyone whose legal rights are being threatened by an ex-spouse's decisions regarding children's names, custody arrangements, and upbringing. Contact an NJ family lawyer today for a consultation.

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