Doherty v. Wizner

Christy Wizner (mother) appeals a judgment in a fil-iation action filed by Chad Doherty (father) regarding a six-week-old girl in mother’s custody. At issue in this appeal is that aspect of the trial court’s judgment granting father’s request to have the child’s last name changed from mother’s last name to father’s last name. Mother assigns error to that disposition on the ground that the trial court applied the incorrect legal standard to the name change ruling. 1 On de novo review, ORS 19.415(3), we agree with mother. Accordingly, we reverse the disposition of the name change, but otherwise affirm.

I. BACKGROUND

A child was born to mother and father on April 8, 2004. The child’s birth certificate identified the child by mother’s surname. Father filed this filiation action on May 18, 2004. During the pendency of the action, mother and father were able to resolve issues concerning father’s paternity, father’s support obligation, and father’s parenting time and mother’s continued custody. The only remaining issue before the trial court was father’s request to have the child’s last name changed from mother’s last name to father’s last name. On November 19, 2004, the court conducted a hearing on the question of which surname the child should be given. The following facts were established at the hearing: (1) mother has had custody of the child since the child’s birth; (2) the name “Wizner” is the surname of mother’s former spouse; (3) mother is the custodial parent of three children with her former spouse, ages three, six, and eight at the time of the hearing; (4) the other three children also use the surname Wizner; (5) the parties have been following a parenting plan that allows father weekly contact with the child; and (6) father has been paying support for the child.

*318 Both parties testified. Father testified that the infant should have his last name “[bjecause she has no blood of Wizner in her. She is my child, our child, but I just grew up that way.” Mother testified that “I just think it would be a whole lot easier on the children * * * to keep the same last name.”

After hearing the testimony of the parties, the court acknowledged that it was not clear what “standard” should be followed under the circumstances presented, but that it seemed prudent to follow the custom of naming a child after a parent the child is related to “by blood.” The court reasoned that the child should have the name of the father (Doherty) because the mother’s name (Wizner) is not a family name that the child is related to by blood, and entered judgment accordingly.

On appeal, mother asserts that the trial court did not properly apply the “best interest of the child” standard to the name change. Had it done so, mother argues, father’s request would have been denied because it is in the child’s best interest to have the surname of her mother and other siblings. Conversely, father contends that Oregon law requires that the trial court recognize the protected interest of the father in having the child bear his surname. We begin our discussion by briefly reviewing the historical development of surnames in America.

II. ORIGIN AND HISTORY OF SURNAMES IN AMERICA

Many different naming systems exist throughout the world. 2 The prevailing custom in most western Anglo-Saxon based cultures is for one or both parents to present a child with three names at birth: the first or given name, 3 a *319 middle name, 4 and a last name or surname. 5 The surname for children of married parents is usually inherited from the father. 6 The practice of using surnames in America finds its roots in the traditions which developed after the Norman Conquest in 1066. 7 After the Conquest, old Saxon names were gradually replaced with a limited number of Norman names. 8 Over time, this resulted in many people using the same names. 9 This development, along with growing populations, created the need to take a second name so that individuals could be separately identified. 10

Initially, surnames were drawn from a number of sources and were not passed down from generation to generation. 11 Over time, however, surnames became hereditary *320 and were used to facilitate the inheritance of property. 12 The custom of passing the father’s surname on to the children was further developed in response to England’s legal system and social practices in which the ownership and management of all marital property was vested in the husband through what came to be called the doctrine of coverture. 13 Under this doctrine, the wife’s legal identity was subsumed in the husband’s. The husband had all legal rights, duties, and powers with respect to the children of the marriage and the children bom of the marriage were given the surname of their father. Lisa Kelly, Divining the Deep and Inscrutable: Toward a Gender-Neutral, Child-Centered Approach to Child Name Change Proceedings, 99 W Va L Rev 1, 19-21 (1996).

When children were born to unmarried parents, different customs were followed. This country adopted the practice developed from the English common law, which maintained that a child born to unmarried parents was a child of no one. 14 This usually meant that the state was required to take responsibility for the care and custody of those children. *321 Governments eventually relieved themselves of their support and custody obligations by declaring that children born to unmarried parents were the children of the mother. 15 Based on this practice, the child was either given the surname of the mother or the mother was given the right to name the child. Id. at 34-35, 46-47; Karen Czapanskiy, Volunteers and Draftees: The Struggle for Parental Equality, 38 UCLA L Rev 1415, 1423-24 (1991).

This country has followed the naming customs and practices adopted from English common law and traditions until recent times. Beginning in the latter half of the twentieth century, traditional naming practices, writes one commentator, were recognized as “com[ing] into conflict with current sensitivities about children’s and women’s rights.” Richard H. Thornton, The Controversy Over Children’s Surnames: Familial Autonomy, Equal Protection and the Child’s Best Interests, 1979 Utah L Rev 303. Those changes accelerated a shift away from the interests of the parents to a focus on the best interests of the child. The law in this area continues to evolve today mainly in the context of paternity and custody actions. 16

III. THE “BEST INTEREST OF THE CHILD” STANDARD

The “best interest of the child” standard has long been looked to by the courts as a guide to resolving disputes relating to children. 17 In this country, the best interest standard has historically been used in most family law cases *322 involving children, including in disputes over custody, adoption, and neglect. 18 In more recent times, this standard has been applied by the courts to disputes between parents over the name a child should use. 19 In this state, the Oregon Supreme Court first applied this standard to a naming dispute in the case of Ouellette v. Ouellette, 245 Or 138, 420 P2d 631 (1966), where the court concluded that “the welfare of the children” was not furthered by mother’s decision to informally alter the spelling of the long-used paternal surname of the children. Subsequently, the “welfare” or “best interest” of the child standard 20 has been followed by this court in naming dispute cases involving children, starting with the case of Gleason v. Michlitsch, 82 Or App 688, 690 n 1, 728 P2d 965 (1986), where the court concluded that “[b]oth the statutes governing filiation actions, * * * and the statutes governing name changes, * * * suggest that [the best interest of the child standard] is the correct standard.” As previously stated by this court, to change a child’s name, the party requesting the change bears the burden of showing “that the change of name is in the child’s best interest.” Tibbetts and Mueller, 183 Or App 379, 390, 52 P3d 1067, 1073 (2002); see also Aylsworth v. Adams, 85 Or App 382, 736 P2d 225, rev den, 303 Or 700 (1987).

Over the years, the “best interest of the child” standard has developed in this country through state courts and legislatures towards a more gender-neutral and child-centered inquiry. It is well-established law today that neither parent has a superior right in determining the child’s last name. 21 The right to name a child is a privilege belonging *323 equally to both parents. Courts across this country have set aside those naming practices of the past that endorse presumptions and preferences that favor one parent over another based upon marital status, 22 gender, 23 or custodial designation, 24 because such presumptions and preferences *324 are not consistent with determining the best interest of the child. These outdated naming practices have been replaced with a requirement that the court determine what is in a child’s best interest, avoiding any interests not supported by the evidence or founded on presumptions that favor one parent over another.

The inquiry, then, is to determine, from the facts given to us by the record, what is in this child’s best interest. There is no definitive list of factors to consider when deciding what would be in the child’s best interest; however, several jurisdictions, including Oregon, have identified factors a court should consider — when they exist and are appropriate in any given case — in the process of deciding what surname will serve the best interests of the child. These factors include the following:

1. The identity and preference of the custodial parent. Tibbetts, 183 Or App at 391; Gleason, 82 Or App at 691; State ex rel Spence-Chapin Services v. Tedeno, 101 Misc 2d 485, 489, 421 NYS2d 297, 300 (NY Sup Ct 1979); see also Merle H. Weiner, We Are Family: Valuing Associationalism In Disputes Over Children’s Surnames, 75 NC L Rev 1625, 1742-52 (1997).

2. The avoidance of embarrassment, inconvenience or confusion. Uri and Uri, 108 Or App 613, 615, 816 P2d 708 (1991); Pizziconi v. Yarbrough, 177 Ariz 422, 425, 868 P2d 1005, 1008 (1994); In re Marriage of Schiffman, 28 Cal 3d at 647, 620 P2d at 923; Hamby v. Jacobson, 769 P2d 273, 277 (Utah Ct App 1989); see also Weiner, 75 NC L Rev at 1732-36.

3. Identification of the child as being part of a distinct family unit. Tibbetts, 183 Or App at 391; Gleason, 82 Or App at 691; In re Marriage of Schiffman, 28 Cal 3d at 647, 620 P2d at 923; In re Change of Name *325 of Andrews, 235 Neb 170, 177, 454 NW2d 488, 492 (1990); Hamby, 769 P2d at 280.

4. The age of the child and the length of time the child has used the surname. Tibbetts, 183 Or App at 391; Aylsworth, 85 Or App at 385; In re Marriage of Schiffman, 28 Cal 3d at 647, 620 P2d at 922; In re Change of Name of Andrews, 235 Neb at 177-78, 454 NW2d at 492-93; Hamby, 769 P2d at 279; Daves v. Nastos, 105 Wash 2d 24, 31, 711 P2d 314, 318 (1985).

5. The preference of the child. McArthur and Paradis, 201 Or App 530, 545, 120 P3d 904, 912 (2005); In re Petition of Craig, 164 Ill App 3d 1090, 1091, 518 NE2d 728, 729 (1987); Daves, 105 Wash 2d at 31, 711 P2d at 318; see also Beverly S. Seng, Like Father, Like Child: The Rights of Parents in Their Children’s Surnames, 70 Va L Rev 1303, 1351-54 (1984). 25

6. The effect of a name change on the relationship between the child and each parent. Uri, 108 Or App at 615; Pizziconi, 177 Ariz at 425, 868 P2d at 1008; In re Marriage of Schiffman, 28 Cal 3d at 647, 620 P2d at 922; In re Change of Name of Andrews, 235 Neb at 177, 454 NW2d at 492; Hamby, 769 P2d at 277, 279; Daves, 105 Wash 2d at 31, 711 P2d at 318.

7. Parental misconduct. Huffman v. Fisher, 337 Ark 58, 68, 987 SW2d 269, 274 (1999); In re Change of Name of Andrews, 235 Neb at 177, 454 NW2d at 492; Keegan v. Gudahl, 525 NW2d 695, 699 (SD 1994); Hamby, 769 P2d at 279. See Shannon J. Kennedy-Sjodin, Note, Keegan v. Gudahl: The Child’s Surname as a New Bargaining Chip in the Game of Divorce, 41 SD L Rev 166, 188 (1996) (where parental misconduct is distinguished from marital misconduct).

8. The level of support for and contact with the child. Aylsworth, 85 Or App at 385; Statham v. Domyan, 153 Ill App 3d 1003, 1007, 506 NE2d 613, 616 (1987); In re Marriage of Gulsvig, 498 NW2d 725, 729 (Iowa 1993); Keegan, 525 NW2d at 699.

*326 9. The motivation of the parent seeking the name change or the parent seeking to oppose it. Marriage of Presson, 102 Ill 2d 303, 465 NE2d 85 (1984); Aitkin v. Girard, 390 NW2d 906, 910 (Minn Ct App 1986); In re Grimes, 530 Pa 388, 394-95, 609 A2d 158, 161-62 (1992); see also Weiner, 75 NC L Rev at 1729-32.

10. The community reputation associated with the names at issue. D. R. S. v. R. S. H., 412 NE2d 1257, 1263 (Ind Ct App 1980); In re Application of Saxton, 309 NW2d 298, 301 (Minn 1981); Hamby, 769 P2d at 279; Daves, 105 Wash 2d 24, 711 P2d 314.

11. Assurances of the custodial parent that she or he will not change hers or his own surname or the child’s surname. In re Marriage of Gulsvig, 498 NW2d at 730; In re Stollings, 65 Ohio App 3d 183, 188, 583 NE2d 367, 370-71 (1989); Hamby, 769 P2d at 280.

12. Important ties to family heritage, ethnic identity, and cultural values. O’Brien v. Tilson, 523 F Supp 494 (EDNC 1981); In re Robinson, 74 Misc 2d 63, 65, 344 NYS2d 147, 149 (NY Civ Ct 1972); In re Baldini, 17 Misc 2d 195, 195, 183 NYS2d 416, 417 (NY City Ct 1959); see Thornton, 1979 Utah L Rev at 304.

The factors listed above represent those factors most commonly identified by courts when deciding if a proposed name change is in the child’s best interest; there certainly may be other factors relevant to this inquiry. Father urges us here to consider as “one factor” the father’s presumed right or “protected interest” in having the child take his surname. Father asserts that he has a legal right to require that the child use his surname, unless mother can establish that it would not be in the child’s best interest to give the child his name due to father’s misconduct. 26

In support of his argument, father relies on Ouellette. That reliance is misplaced for two reasons. First, *327 although Ouellette referred to a father’s “protectible interest” in the course of quoting from an ALR annotation, 245 Or at 142, the court did not expressly adopt the “protectible interest” doctrine. Rather, the court’s holding emphasizes the fact that the mother offered no evidence that the children’s continued use of the father’s surname is “contrary to the welfare of the children.” Id. (emphasis added). The Ouellette case involved parents who were married in 1950 and divorced in 1958. The mother was awarded custody of the three children born during the marriage. After the divorce, the mother and the children continued to use the father’s surname until the mid-1960s, when the mother informally changed the surname she used for herself and the children from Ouellette to O’Let. At the time the suit was filed, the children were ages 14, 13, and 9. The name the mother was trying to replace the children’s surname with was not another family name but was a different spelling of the surname used by the children. On those facts, the Ouellette court concluded that “the welfare of the children” was not furthered by the mother’s decision to informally alter the children’s long-used surname. The welfare of the child, as it always does in cases of this nature, remained paramount. 27

Second, we decline to read Ouellette as adopting a “paternal presumption” given the broader statutory context in which that case was decided. ORS 109.030 provides now, as it did at the time Ouellette was decided, that “[t\he rights and responsibilities of the parents, in the absence of misconduct, are equal, and the mother is as fully entitled to the custody and control of the children and their earnings as the father.” 28 (Emphasis added.) In the absence of explicit language adopting a preference in favor of the father, and considering the existence of a statute that appears to abrogate such preferences, we decline to read Ouellette as granting superior naming rights to the father.

*328 Father’s insistence that we recognize a paternal preference or presumption ignores a half-century of social change and development of the law in our country. Since the 1960s, we have witnessed significant changes in the form and function of the traditional family unit. During this time, the marriage rate has sharply declined, while the cohabitation and divorce rates have significantly increased. 29 And of particular relevance to this case, the percentage of children born to unmarried parents has increased from 5 percent in 1960 to 37 percent in 2005. 30 These changes have reshaped traditional customs and patterns regarding family and the rearing of children, including the custom of naming our children. In recognition of these changes, we have adhered to an analysis based solely on the best interest of the child standard — as articulated in Gleason and, thereafter, in the cases that followed. 31 The gender-based presumptions of the past should not apply to this analysis because they take discretion away from the court to consider the circumstances unique to each case and to apply those factors relevant to a determination of what would be in the child’s best interest. Application of the paternal presumption, in effect, defeats the “best interest of the child” standard. For this important reason, along with those discussed herein, we hold that the best interest of the *329 child standard should be applied in this case, free of any presumptions or preferences.

IV. ANALYSIS

Assessing the factors relevant to this case, we first note that mother is the custodial parent and will be the primary caregiver in the child’s fife into the foreseeable future. The court in Gleason concluded that “the identity of the custodial parent is an important factor in determining the relationship of the child’s best interests to the surname it should bear.” 82 Or App at 691. As observed by the court in Tibbetts, it is especially important to consider if the child’s name “would be different from his primary custodial parent’s name.” 183 Or App at 391. In both Gleason and Tibbetts, the court quoted with approval this statement of policy from a New York trial court:

“ ‘The significant consideration is that the mother has custody and it is she who will be the primary caretaking figure and who will make the major decisions for [the child]. Moreover, the court recognizes that children, as they grow older, generally prefer to use the name of the parent with whom they live.’”

Gleason, 82 Or App at 691 (quoting State ex rel Spence-Chapin Services, 101 Misc 2d at 489, 421 NYS2d at 300); Tibbetts, 183 Or App at 391. Consideration of the identity and desire of the custodial parent is an important factor in the process of addressing a request for a name change. In this case, mother gave the child her surname at birth. She explained to the court that she gave the child her surname because it was the same surname that she and her three other children used and that “I just think it would be a whole lot easier on the children * * * to keep the same last name.” Mother’s decision to give the child her surname is rationally based and appears to have been made in furtherance of the child’s best interest.

Second, it is foreseeable that giving the child her father’s surname may lead to some confusion and possible embarrassment to the child at those times when the child is identified as having a different surname from the surname used by her mother and three siblings. This might occur at school and in other social settings, where the child would *330 have to explain why she has a name different from her mother and siblings. 32

Third, we consider the fact that the child is presently part of a distinct family unit, with mother and her three siblings. The surname they use is the surname all three of the child’s siblings have used since their birth; it is the surname used by the father and mother of the child’s siblings. This surname serves as a symbolic connector and foundation for this family unit. 33 As time goes on, the child may be better able to identify herself as belonging to this distinct family unit if her surname is the same as her mother and three siblings. 34 As other courts have acknowledged, a child’s use of the same surname as used by the custodial parent and others living in the household may promote in the child feelings of acceptance and security. 35

Fourth, because of the child’s young age (seven months at the time of trial), she is not capable of identifying with any given surname or indicating a reasonable preference for one name over another. 36 Accordingly, those otherwise important considerations offer no guidance in this case.

*331 Fifth, we recognize that having a surname different from the noncustodial father’s surname can have an impact on the relationship that the noncustodial parent has with the child. Historically, many courts would require children to take the noncustodial father’s surname as a means of maintaining a connection between father and child. We recognize that, in many cases, a noncustodial parent does not have the same opportunities, as the custodial parent does, to strengthen an existing bond with the child. Nevertheless, a noncustodial father’s insistence that the child bear bis name can, in the words of one commentator, confuse “the child’s best interests with the father’s need for a symbol * * *. The analysis would be clearer if courts recognized that the father’s feelings are not equivalent to the child’s interests.” Seng, 70 Va L Rev at 1339-40. In the final analysis, development of a bond between father and daughter will depend on the love and devotion that father exhibits toward his daughter, not on whether the child bears his name. 37

Sixth, there is no evidence in the record that mother has any plan to change the surnames of her children, either through marriage or otherwise. It is reasonable to assume that all four children of mother will share this surname into the foreseeable future.

Finally, we consider the father’s expressed reason for seeking this name change. Father asserts that his surname is a name the child is related to “by blood,” while the *332 child has no ancestral family relation to mother’s surname. In our country, a name has commonly served as a link to a person’s family heritage and ethnic identity. 38 As one court stated, “[p]ride of ancestry, parentage and succession is deeply rooted in our society.” In re Robinson, 74 Misc 2d at 65, 344 NYS2d at 149. Positive benefits can accrue to a child from a knowledge and awareness of the people and cultures the child is related to. However, if the unstated goal of father in giving his name to his daughter is to develop in her an awareness of her roots and family heritage, requiring that she use her father’s surname does not, by itself, accomplish this important goal. Passing on a surname, by itself, only identifies a child as being connected to a limited number of ancestors, 39 unless the name can be connected to a history, a culture, a family heritage, or an ethnic identity that can give added meaning and a sense of belonging to a child’s life. There is no evidence in the record that father has made, or plans to make, that connection. 40

The most important and relevant factors from this analysis are, first, the reasonable preference of the custodial *333 parent, and, second, the importance of avoiding any confusion or embarrassment that could result from the child using a surname different from that used by her custodial parent and three siblings. We conclude on de novo review that these considerations, when combined, establish that it is in the best interest of the child that her surname remain Wizner. Therefore, the decision of the trial court to change the child’s surname from Wizner to Doherty is reversed.

Provision of judgment changing child’s name reversed; otherwise affirmed.