IN RE: the Application of N.I.H. Also Known as N.I.H. as Parent(s) of J.D.L. (infant) for Leave to Change His/Her Name to J.D.
Petitioner's name change application is hereby denied with leave to renew.
N.I.H., also known as N.I.H., (hereinafter, “Petitioner”) filed a petition with this Court on July 19, 2019, seeking to change the name of her son, J.D.L., Jr., to J.D.D. That petition was reviewed by the Honorable Lisa Grey. By an order dated August 6, 2019, the original application was denied without prejudice due to the absence of certain supporting documentation, including evidence of consent to the name change by the child's birth father, J.L., Sr., as well as issues on the face of the petition. Petitioner then filed an amended application and petition on August 16, 2019, attaching a parental consent form completed and signed by A.D., an individual identified as Petitioner's spouse. By order dated September 4, 2019, the application was again denied. On September 10, 2019, Petitioner filed an amended consent form signed by Mr. A.D.
By notice dated September 18, 2019, the Court directed Petitioner to appear for a hearing on October 9, 2019, and to serve the child's birth father, J.L., Sr., with copies of the petition, a notice of petition, and the hearing notice to his last known address, pursuant to Civil Rights Law § 62(1). According to Judge Grey's decision, Petitioner appeared at the hearing and provided proof that at that time she attempted to serve the child's father by certified mail but, there was no authorized recipient available to accept it. She testified that at that time the child's father could not be found and had not communicated with the Petitioner or the child for at least two years. On October 18, 2019, Petitioner filed a copy of the custody order issued by Hon. Margaret M. Mulrooney, Referee, Queens County Family Court, dated June 13, 2011, wherein Paragraph 19 states, “Both parties covenant, represent, and warrant that they will not, at any time and for any reason, cause the child to be known or identified or designated by any other surname other the [sic] child's present surname”. Judge Grey again denied the application citing that the record lacked proof of actual notice given to the child's father. Furthermore, Judge Grey cited the Custody Stipulation from Queens Family and that the facts are insufficient to undo the custody order without actual notice to the father.
On April 12, 2022, by written application, Petitioner petitioned the Court to submit another amended application for name change. In this affidavit, Petitioner stated that since the last application, she was able to contact the child's father through text message. An order to allow the amended application to be filed was signed by the Honorable Robert Helbock on April 14, 2022. On May 3, 2022, Petitioner filed another amended petition and application. This time, Petitioner attached text messages exchanged between herself and the child's father, J.L., Sr. In these text messages, the child's father agrees to the name change so long as he no longer has to make child support payments. Petitioner provided proof of service of this amended petition and application to the Court on June 2, 2022.
On June 13, 2022, notice was mailed to both Petitioner and J.L., Sr. for a hearing on the name change to take place on July 6, 2022. Both parties attended and participated in the hearing.
“I was there the day he was born.” That was the response by J.L., Sr. when asked by this Court what his grounds for objection were in opposing the name change for his son. While much of the hearing echoed the same sentiments from the Petitioner as detailed in Judge Grey's decision, the two apparent differences were the testimony and presence of Petitioner's son, J.D.L., Jr. and the child's father, J.L., Sr. First, the Court acknowledges that this hearing was scheduled promptly for 2:15 P.M. J.L., Sr. interrupted Petitioner's testimony by entering into court over fifteen minutes late without justification.
During the hearing, Petitioner explained how close the relationship is between Mr. A.D. and her son and detailed the exemplary role that Mr. A.D. has played in her son's life. The Petitioner further explained how the idea to even pursue the name change did not originate from Mr. A.D. or herself but, from J.D.L., Jr. The Court had the opportunity to hear sworn testimony from J.D.L., Jr. It was readily apparent that the presence of his biological father, J.L., Sr., was intimidating and clearly impacted his ability to articulate his wishes. Ultimately, J.D.L., Jr. testified that he wanted the name change because he utilizes the name “D.” in school. Albeit brief and undoubtedly curtailed by the fear and anxiety caused by the presence of his biological father, it was clear that J.D.L., Jr. is a bright young man who truly desired to change his last name to “D.”. While the Court asked J.D.L., Jr. a few questions, any further probing would be detrimental to the child's mental wellbeing.
J.L., Sr. was also given the opportunity to testify regarding his opposition to the name change. While one would expect an individual to appear before the Court under such circumstances in a humble, contrite, and apologetic manner, J.L., Sr. could not be any less of the three. His tardiness in attending the hearing merely set the stage for the unrepentant and vindictive demonstration he proceeded to display. J.L., Sr.’s testimony was wrought with arrogance and uttered a complete lack of remorse for the nonexistent relationship he has with his son. During his testimony, J.L., Sr. explained that he was inexplicably absent from most of his son's life but, would always talk about his kids. While according to his testimony, he may talk about his kids to other, Mr. J.L., Sr. was clear that he does not talk with his kids. Specifically, he explained that after an extended period without communication, his son contacted him, and he proceeded to stop taking his son's calls and cut off communication with him because he perceived his son as being disrespectful. Additionally, throughout the hearing, Mr. J.L., Sr. attempted to interject personal issues he had with the Petitioner.
At two points during Mr. J.L., Sr.’s testimony, his brief, yet vapid, responses spoke volumes as to what this proceeding and the relationship with his son meant to him. First, when asked for his grounds for objection to the name change, his simple response was that he “was present at the hospital the day his son was born”. Mr. J.L., Sr. offered no apology for his absence from his son's life nor did he provide any prospect of making an effort to improve the relationship. This was most apparent when asked how a name change would impact the relationship between he and his son. In response, Mr. J.L., Sr. gave an unintelligible answer that essentially reflected uncertainty. Mr. J.L., Sr. cited to his son's age and the fact that he was too young to make the decision to change his name. He suggested that his son wait until 18 years old to make the decision.
As stated by Pope John XXIII, “It is easier for a father to have children than for children to have a real father”. J.L., Sr. may be J.D.L., Jr.’s biological father but, in reality, J.L., Sr. is no father at all. A father does not cut off communication with his son. A father does not use his son as a pawn in a child support agreement. A father does not neglect working on a relationship with his child. J.L., Sr. receives no sympathy from the Court. Mere presence at birth does not raise a child. While it was palpably difficult for the Court to listen to the arrogant account of his relationship, or lack thereof, with his son, one can only imagine how difficult it was for J.D.L., Jr. to be present in court during it. The text messages provided to the Court by the Petitioner were appalling. Mr. J.L., Sr. attempts to use his ability to object to the name change as a means of avoiding child support payments that he was only recently ordered to pay. This manipulative and cowardly attempt at thwarting responsibility is no example to set for a child. Every child deserves better than that.
Civil Rights Law § 63 and New York Courts have long recognized the authority to change a child's name absent reasonable objection where the interest of the infant will be substantially promoted by the change. Matter of Stone v. Weinberg, 189 A.D.3d 1425, 1425-1426, 134 N.Y.S.3d 773 (2d. Dep't 2020); Matter of Rudder v. Garber, 164 A.D.3d 511, 77 N.Y.S.3d 886 (2d. Dep't 2018); Matter of Eberhardt, 83 A.D.3d 116, 122, 920 N.Y.S.2d 216 (2d. Dep't 2011). Equally well established is that no parent has a superior right to determine the surname of a child. Id. When determining whether a proposed name change falls within the best interest of the infant, the Court must look at the totality of the circumstances including, but, not limited to: 1) the extent to which a child identifies with and uses a particular name, 2) the child's expressed preference, 3) whether the child's surname differs from the custodial parent's surname, 4) the effect the proposed name change would have on the child's relationship with either parent, 5) whether the child's surname differs from his or her close siblings, 6) whether the child is known by a particular surname in the community, 7) misconduct of a parent such as failure to support or visit with the child, 8) and the difficulties or embarrassment that a child may experience with their current or proposed surname. Matter of Eberhardt, 83 A.D.3d 116, 123-124, 920 N.Y.S.2d 216 (2d. Dep't 2011).
It is clear that by granting Petitioner's application to have J.D.L., Jr.’s name changed to J.D.D., his best interest would be served. The case record reflects all the relevant factors. J.D.L., Jr. identifies with the name and desires the name change. Despite J.L., Sr.’s evasive answer, it is clear that a name change would further strain the relationship between J.L., Sr. and his son. However, for almost thirteen years, his son had his name, and still he has no relationship with him. J.L., Sr.’s essential abandonment should not be rewarded by way of his unreasonable, hollow, and pitiful self-serving, objection. In viewing the totality of the circumstances, the name change would be in the best interest of the infant.
Although jurisprudence permits the Court based on the totality of the circumstances to grant the name change application, this petition contains an additional factor that is notably absent in other name change litigation. Here, J.L., Sr. and the Petitioner entered into a Custody Stipulation on June 13, 2011 in Queens County Family Court. This Stipulation specifically references the prohibition of either parent's ability to change J.D.L. Jr.’s surname.
Stipulations of settlement are favored by the court and are not lightly cast aside without sufficient cause stemming from fraud, collusion, mistake or accident that would cause injustice or inequity. Matter of 35 Jackson House Apts. Corp. v. Yaworski, 163 A.D.3d 805, 807, 83 N.Y.S.3d 62 (2d. Dep't 2018). When parents enter into a custody agreement, it will not be set aside unless there is a sufficient change in circumstances since the time of stipulation and the modification is in the best interest of the child. Walter v. Walter, 178 A.D.3d 991, 992, 112 N.Y.S.3d 512 (2d. Dep't 2019); Trimarco v. Trimarco, 154 A.D.3d 792, 62 N.Y.S.3d 166 (2d. Dep't 2017); Weisberger v. Weisberger, 154 A.D.3d 41, 50, 60 N.Y.S.3d 265 (2d. Dep't 2017). By general jurisdiction, Supreme Court, and by statute, Family Court, maintain jurisdiction over custody proceedings. NY CLS Family Ct. Act § 651. A court that has made a child custody determination has exclusive, continuing jurisdiction over the determination. NY CLS Dom. Rel. Section 76-a. New York City Civil Court on the other hand is a court of limited jurisdiction, not including matters related to custody. NY CLS Const. Art. VI § 15 (b).
This Court does not have the requisite jurisdiction to decide issues of custody or modify custody stipulations.
Unfortunately, due to the lack of jurisdiction and the binding nature of the custody stipulation, specifically, Paragraph 19, the Court is unable to grant Petitioner's most recent name change application. This application is denied with leave to renew should there be a modification to the current custody stipulation or if Mr. J.L., Sr.’s position changes. Furthermore, upon turning 18 years old, J.D.L., Jr. is free to make said application on his own without the need for parental consent.
This constitutes the final Decision and Order of the Court.
Matthew P. Blum, J.
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