IN RE: the MARRIAGE OF Patricia C. and Jason A. SCHIFFMAN.

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Court of Appeal, First District, Division 3, California.

IN RE: the MARRIAGE OF Patricia C. and Jason A. SCHIFFMAN. Patricia C. HERDMAN (Schiffman), Appellant, v. Jason A. SCHIFFMAN, Respondent.

Civ. 44717.

Decided: February 28, 1980

Chapot & Parker-Bass, Walnut Creek, Curtis A. Freund, Oakland, for appellant. Harry Bluer, Oakland, for respondent.

Appellant Patricia Herdman (Schiffman) appeals from that portion of an interlocutory decree dissolving her marriage to respondent Jason Schiffman which enjoins either party from changing the name of their child from Schiffman.

The issue presented here is whether the mother of a child born in wedlock has the right to give that child her surname rather than that of the father, despite the father's objection. We conclude that absent an agreement between the parents as to a surname for their child, the father of a child born to a married couple has a legally protectible right to have that child bear his surname.

Appellant and respondent were married on January 15, 1977, and separated on June 29th of the same year. At the time of the separation appellant was pregnant. On August 4th appellant petitioned for the dissolution of the marriage, alleging in part that there was an unborn child of the marriage. The child was born November 2, 1977. At appellant's direction the birth certificate shows “Herdman,” the maiden name of appellant, to be the surname of the child. There is no dispute before us as to the propriety of the mother's bestowing upon the child her “given” name, Aita Marie.

The respondent father's response to appellant's petition for dissolution was filed on December 21, 1977, alleging a minor child of the parties described as Aita Marie. It is unclear from the record when, prior to trial, respondent became aware that the child was given the mother's surname rather than his. At trial on February 21, 1978, however, the matter was discussed, and the objected to order was made.

There is a dearth of cases considering what surname a child born in lawful wedlock should bear. Appellant concedes, as she must, that by custom such children bear the surname of the father. (See In re Trower (1968) 260 Cal.App.2d 75, 77, 66 Cal.Rptr. 873; In re Worms (1967) 252 Cal.App.2d 130, 134-135, 60 Cal.Rptr. 88.) The father has had a “protectible interest” or “primary right” in having his child bear his surname. (Montandon v. Montandon (1966) 242 Cal.App.2d 886, 891, 52 Cal.Rptr. 43.) Appellant contends, however, that with the adoption of the California Uniform Parentage Act (Civ.Code, ss 7000-7018) as construed in Donald J. v. Evna M. (1978) 81 Cal.App.3d 929, 147 Cal.Rptr. 15, courts can no longer look to the sex or marital status of a parent in determining what name a child should bear.

The California Uniform Parentage Act eliminates the legal distinction between legitimate and illegitimate children, and establishes legal equality of children without regard to the marital status of their parents. (Estate of Wilts (1978) 80 Cal.App.3d 599, 604, 145 Cal.Rptr. 759.) The Act was enacted in 1975 along with other code amendments and revisions eliminating all statutory references to “legitimacy” and “illegitimacy,” and liberalizing evidence rules governing paternity. (Stats.1975, ch. 1244, s 11; see 7 Pacific L.J. (1976) 411.)

Section 7001 of the Act provides: “As used in this part, ‘parent and child relationship’ means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” Section 7002 provides: “The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” Nowhere in the Uniform Parentage Act does the statute address the question of surnames for children. Appellant urges, however, that when the Legislature eliminated the status of illegitimacy, by necessary implication it also changed the customs whereby a child acquires its surname. She cites language in Donald J. in support of her contention.

Donald J. involved a conflict over the surname of a child born to an unmarried couple. When the child was born, the mother gave the infant her surname. Three years later, the plaintiff commenced an action to have himself declared the child's father. He also sought an order directing that the child use his surname, and that the birth certificate be corrected. The trial court dismissed his cause of action for a determination that he was the natural father, for reasons not relevant here, and denied his request to order the use of his name, simply stating that the use of a name cannot be prohibited unless fraud is involved. On appeal, the court held the plaintiff was entitled to bring an action to determine that he was the natural father pursuant to the Uniform Parentage Act (Civ.Code, s 7006), and stated that if indeed he was the natural father, he had some legal right to control the child's use of a surname. After recognizing that no statute requires parents to give a child a particular surname, the court then discussed the cases acknowledging the father's protectible interest in having his child bear his surname. From those cases the court reasoned: “Thus, absent a statute to the contrary, it would appear that the common law of this state is that a father of a child born in lawful wedlock has a primary right or protectible interest in having that child bear his surname while the mother of a child born out of wedlock has a primary right or protectible interest in that child bearing her surname.” (81 Cal.App.3d at pp. 936-937, 147 Cal.Rptr. at p. 20.)

The court then discussed the effect of the Uniform Parentage Act on these common law rights (at p. 937, 147 Cal.Rptr. at p. 20):

“With the adoption of the California Uniform Parentage Act no longer can it be said that a parent has a primary right or protectible interest in having his or her child bear and maintain that parent's surname merely because of the parent's sex and marital status with respect to that child's other parent at the time the child is born. The controlling consideration in determining whether a change in a child's surname should be ordered against the objection of one of the parents, is the welfare of the child. (See 57 Am.Jur.2d (1971) Name, s 14, p. 284.) Thus, where a child has used a particular surname for a substantial period of time without objection by either natural parent, the court, upon petition of one of the natural parents to change the child's surname over objection of the other natural parent, should exercise its power to change the child's surname reluctantly, and only where the substantial welfare of the child requires the change. (See Annot., Names Children Rights of Parents (1957) 53 A.L.R.2d 914, 916; see also In re Trower, supra, 260 Cal.App.2d 75, 77, 66 Cal.Rptr. 873; In re Worms, supra, 252 Cal.App.2d 130, 134-135, 60 Cal.Rptr. 88; Montandon v. Montandon, supra, 242 Cal.App.2d 886, 890-891, 52 Cal.Rptr. 43.)”

Appellant contends that the court's analysis in Donald J. requires a conclusion that when a child is born, either parent has an equal right to give that child a particular surname. While the broad language of the court's discussion may appear to support appellant, when we consider that language in its factual context, and examine the court's precise holding, we conclude that appellant's position cannot be sustained.

The court in Donald J. acknowledged as the common law the custom that a father of a child born in wedlock has a protectible interest in having that child bear his surname, and that the mother of a child born out of wedlock has a similar interest in having that child bear her surname. (81 Cal.App.3d at pp. 936-937, 147 Cal.Rptr. 15.) The mother of a child born in wedlock has long had the right to seek to have that child's surname changed from that of its father. (See, e. g., In re Trower, supra, 260 Cal.App.2d 75, 66 Cal.Rptr. 873; In re Worms, supra, 252 Cal.App.2d 130, 60 Cal.Rptr. 88.) However, prior to Donald J., the natural father of a child born out of wedlock had no similar right. The court in Donald J. addressed the propriety of an unwed father being able to Change his child's surname to his own, and held that the Uniform Parentage Act modified the common law to give such a father the right to prove that a name Change would be in the child's best interests. However, we find nothing in either the Act or in Donald J. to alter the underlying common law as to what surname should initially be bestowed upon a child. Not even by implication can Donald J. be construed to entitle a mother unilaterally to give a child born in lawful wedlock either her surname, or any other surname, over the objection of the father.

This is not a case where the child has used “a particular surname For a substantial period of time without objection,” requiring the court to consider whether any name change would be in the best interests of the child. (Donald J., supra, at p. 937, 147 Cal.Rptr. at p. 20, emphasis added.) Here less than three months elapsed between the date of the child's birth and the hearing on the interlocutory decree. We do not know when within that three-month period the father became aware that the child did not receive his surname, but clearly, the child had not used the mother's name for a “substantial period of time.” Absent agreement to the contrary, the father had the right to expect his child to be given his surname at the time of her birth.

A contrary rule to the one we have expressed here could lead to unnecessary mischief. If appellant's contentions were accepted, either party, presumably, could give the child any surname it wanted, whether the surname of the mother or the father or any other surname, despite the objection of the other parent. The parent who won the “race to the birth registry” would prevail. The nonconsenting parent would then be put to the task of a court proceeding to show such surname not to be in the best interests of the child.

Absent a clear statutory expression to the contrary, we conclude that the common law determining the birth surname of a child remains unchanged.

Judgment is affirmed.

SCOTT, Associate Justice.

WHITE, P. J., and RHODES (Assigned by the Chairperson of the Judicial Council), J., concur.