IN RE: the Application of DM as Parent of SD and AD (2025)

This Honorable Court Decides and Orders, upon Application of Petitioner Mother in a proceeding pursuant to Civil Rights Law Article 6 for leave to change the surnames of two sibling Infants with Waiver of Parental Consent pursuant to NY CLS Civ R § 62(1) is hereby GRANTED.

The Infants’ current surname is being used in its vulgar colloquial context to bully the Infants, causing angst and consternation. It is well established by statute, common law and public policy, and deemed one of the strongest and most persuasive in the law, is the presumption of the legitimacy of both parents of a child born during a marriage, regardless of the validity of such marriage and regardless of whether husband signed the birth certificate (see, Domestic Relations Law § 24 [1]; FCA § 417; Matter of Joseph S. v Crystal B., 73 Misc 3d 1201[A], 2021 NY Slip Op 50870[U] [Fam Ct Erie Cty. 2021], citing Matter of Onorina C.T. v Ricardo R.E., 172 AD3d 726, 728 [2d Dept 2019]; David L. v Cindy Pearl L., 208 AD2d 502 [2d Dept 1994]). In the best interest of the child, this presumption of legitimacy shall not be disturbed unless rebutted by clear and convincing evidence disproving husband as the father. In the instant matter, neither birth certificate contains a printed name of a father. However, Petitioner Mother proffered affidavits indicating the name of an alleged biological father bearing the same surname sought to be changed herein of the infants; there is no Order of Filiation in effect nor pending nor DNA Paternity Tests; there is no contact by alleged biological father nor is he active in the infants’ lives; there is no child support agreement; there is no indication that alleged biological father was married to the Petitioner Mother; and there is no putative father in the infants’ lives. Nevertheless, the Petitioner made efforts to contact the alleged biological father by calling him and asking his sister as to his whereabouts to secure consent, to no avail. Petitioner Mother thus makes application for waiver of alleged biological father's consent pursuant to NY CLS Civ R § 62(1). The Court finds that although the Petitioner Mother provides the name of an alleged biological father, the presumption of legitimacy does not apply here, nor is there any proof of paternity of the alleged biological father. The mere sworn statement of Petitioner Mother without objective scientific corroboration is insufficient. The totality of the circumstances test to determine whether the surname change with waiver of alleged biological father's consent is in the best interests of the Infants, is satisfied herein (see Matter of Giovanni C. (Sarah D.—Christopher C.), 228 AD3d 1033 [3d Dept 2024], citing Matter of Noah ZZ. (Amanda YY.--Ramon ZZ.), 186 AD3d 1806, 1807-1808 [3d Dept 2020]).

This constitutes the opinion, order and decision of This Honorable Court.

Sandra Elena Roper, J.