IN RE: the Application of MARK L.S.

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Supreme Court, Suffolk County, New York.

IN RE: the Application of MARK L.S., As Parent and Natural Guardian for Leave to Change Minor's Name to Ellie Marie S.-W.

xxx/2018

Decided: November 06, 2019

PETITIONER'S ATTORNEY, Law Office of Dorothy A. Courten PLLC, 38 Kings Highway, Hauppauge, NY 11788 RESPONDENT PRO SE, Jamie W., redacted, Medford, NY 11763

In the petition before the court, Mark L. S., the father of a two-year old girl, seeks to change her name from Joelle Marie W. to Ellie Marie S.-W. A hearing was conducted before the undersigned on September 17, 2019 and October 11, 2019. At the commencement of the hearing, the mother, Jamie W., consented to changing the child's surname to S.-W. Mr. S. proposed two alternatives in regard to his original request of Ellie Marie—either Joellie Marie or Joelle Olivia. However, Ms. W. did not consent to changing either the first or middle name of the child. Thus, the hearing proceeded and the court heard testimony from both parents.

The credible testimony established the following facts. The parties were never married, but were living together in Mr. S.'s house at the time the mother became pregnant, together with Ms. W.'s older daughter, and Mr. S.'s two children from a previous marriage. In the spring of 2017 their relationship deteriorated very significantly, and by late July of that year Ms. W. moved out of the house. She took steps to hide from Mr. S., and would not allow him to visit the baby in the hospital at the time of her birth, xx/xx/2017. She did not put his name on the birth certificate, even though there was no doubt of his fatherhood. She did not tell him the name she had given the child for twenty-seven days. As a result, on the birth announcements sent out by the father, he indicated the child's name as “Ellie Olivia.” Mr. S. was not able to see the child for the first three months of her life. Currently, the father calls the child “Ellie,” as a nickname, the mother calls her “Joelle” and the mother's older daughter calls her “Jojo,” as a nickname.

Prior to the deterioration of their relationship, the parents discussed names for the child, once the gender was ascertained. Mr. S. advocated for a name starting with “E” as a way of naming the child for his Uncle Elliott who had died without having children of his own. Ms. W. wanted a name starting with “J” since her own first name starts with a “J,” as do those of her own elder daughter and Mr. S.'s daughter, so that all of the females would have names starting with that letter. At one point, Ms. W. proposed the name “Elle,” which Mr. S. liked. However, it appears that there was never a firm agreement on what the name would be.

At the child's birth, Ms. W. named her Joelle Marie. She viewed the first name as a compromise between what the father had wanted and liked, represented in the “elle” portion of the name, coupled with her desire to have the name start with a “J.” In Mr. S.'s view, Joelle was not a compromise and he finds it hurtful that his wishes are not reflected in the child's first name. Ms. W. selected the middle name, Marie, based upon her own and her older daughter's middle names being Marie. As noted above, Mr. S. selected Ellie Olivia for the birth announcement he sent out.

Ms. W. had the child baptized in the Christian faith, with the name Joelle Marie. Mr. S. had a Jewish naming ceremony in which the child was given a Hebrew name, Elisheva Menucha, in memory of his Uncle Elliott and Great-Uncle Oscar. Each parent asserted the desire to have the child's name reflect his/her religious heritage, and each parent agreed that it was important to have finality on the issue.

During the pendency of the present petition, the parties were engaged in a protracted custody trial in Family Court, Suffolk Count. This court takes judicial notice of the determination of the Family Court to accord the parties joint custody of their daughter, with parenting time split fifty-fifty.

Name changes are governed by Civil Rights Law § 63, which “authorizes an infant's name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change.” In re Eberhardt, 83 A.D.3d 116, 121, 920 N.Y.S.2d 216, 219-220 (2d Dept. 2011). It is firmly established that neither parent has a superior right to choose a child's surname. Id. at 123, 920 N.Y.S.2d at 221. There is no rational reason to think the rule would be any different with regard to first and middle names. In this regard, the court notes that the overwhelming percentage of cases on the issue of contested name change applications for children involve the question of the child's surname.

In determining the issue of whether the child's best interests will be substantially promoted by the proposed change, the court “is to consider the totality of the circumstances (citations omitted). Id. Many of the factors highlighted by the Appellate Division in the Eberhardt case are not pertinent here, due to the fact that there is an agreement between the parents that the child's surname shall be S.-W., and also that the child has only just turned two years old, and cannot express her preference, nor whether she identifies with a particular name. As a rule, feelings of embarrassment or alienation are considered extremely pertinent factors in the best interests analysis. In re Altheim, 12 A.D.3d 993, 784 N.Y.S.2d 910 (3d Dept. 2004).

Ms. W.'s agreement to the hyphenated surname, with the father's surname in the primary position, achieved the laudable goal of the child bearing a name that recognizes the heritage and familial line of both parents, as well as linking her to both her half-siblings on her father's side and her half-sibling on her mother's side. The court must now determine whether the mother has raised a reasonable objection to changing the child's first and middle name, and whether the child's best interests will be substantially promoted by such a change.

Ms. W.'s objections essentially boiled down to three points. First, she believed that the name, Joelle, was a compromise between the parents' wishes, and that is the name she has always used in addressing her daughter. Second, she wanted to honor the tradition of naming a child after living family members. Third, she did not care for either of the father's proposed first names. The reasonable nature of the objections must be judged in the context of the reasons advanced for the change of name. The father's overriding reason for changing the child's name was to name her after his deceased Uncle Elliott, in accordance with Jewish tradition. He would accept the compromise of “Joellie”1 but not “Joelle.” Given the basis for the father's request, the court cannot say that the mother's objections thereto are unreasonable. Both parents have similar motivations, which simply conflict with each other.

Having found that the mother's objections are reasonable, the court must next turn to whether the child's best interests will be substantially promoted by changing her name. Essentially, the situation is one involving a dispute over personal preferences, one which certainly occurs frequently, even in families where the parents are married or living together. Even families with parents of the same religion may have disputes over whether to name the child for this relative or that relative. Here, each parent had the opportunity to participate with the child in a religious ceremony in which she was welcomed into each religion under a name selected by each parent. She was baptized, presumably as Joelle Marie, and she was named in the Jewish religion with a Hebrew name selected by the father. These facts, coupled with the fact that the child will have a hyphenated surname, renders the issue of the extent to which her first and middle names reflect her familial heritages less urgent.

The child is too young to express any personal preference. She is called by different appellations currently, without any deleterious effect—Joelle, by her mother, the nickname of Ellie by her father and the nickname Jojo by one of her sisters. There is no issue here of embarrassment or alienation or confusion.

Mr. S. was obviously and understandably upset by Ms. W.'s inappropriate behavior at the time of the child's birth. That feeling has persisted to date, and this proceeding appears to be a means of assuaging such feeling on the father's part. Of course, there is no guarantee that, had the mother not kept the child from the father at the time of her birth, there would have been a different result as to the first and middle names. However, the Second Department has observed that one parent's desire to teach the other a lesson for taking unilateral action on a child's name, should not be done at the child's expense. Eberhardt, 83 A.D.3d at 122, 920 N.Y.S.2d at 220. While changing the child's first and/or middle name in the present case would not be at her expense, in that she is so young that she may not even know the difference, correcting unilateral actions on the part of one parent is not a factor that weighs heavily in the court's analysis.

The question is how devising some sort of compromise name would substantially promote the child's best interests. The question was posed to the mother as to why she would not agree to adding one letter to the child's current name, making it “Joellie Marie,” which was acceptable to Mr. S. However, the same question, in reverse, could be posed to the father as to why adding that one letter would substantially promote the child's best interests. The court simply does not find that such a showing has been made, given the fact, noted above, that the surname is now hyphenated, and the father has given the child Hebrew names in memory of his relatives. In addition, this result allows all of the various family members to continue to address the child as they have been doing so since her birth.

Based upon the foregoing, it is hereby

ORDERED that the petition is granted to the extent that the child currently known as Joelle Marie W. (DOB 10/10/17) shall hereinafter assume the name of Joelle Marie S.-W., and it is otherwise denied; and it is further

ORDERED that petitioner shall submit an order in accordance with this Decision and Order, and with the provisions of Civil Rights Law § 63 for the court's signature, the proposed order previously submitted having been marked “unsigned.”

FOOTNOTES

1.   At the hearing, counsel for the father questioned the mother regarding a letter from her prior counsel representing that she would agree to “Joellie.” Whether she did so or not, the mother was not estopped from opposing that name at the hearing, unless such estoppel would further the best interest of the child. In re Eberhardt, 83 A.D.3d at 124, 920 N.Y.S.2d 216. In this matter, the mother's purported agreement a couple of months prior to the hearing has no bearing on the best interests of the child.

Martha L. Luft, J.

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