February 5, 2012

Where Children Are Concerned, A Name Change Is Not Necessarily A Simple Matter

When a couple divorces, it is easy to understand why some may want to erase all evidence of the failed relationship. That’s one reason behind women reclaiming their maiden names as part of their divorce settlements. But when children are involved, such decisions are not so easy. If, after reading the following, you need assistance with custody-related issues, contact the family law attorneys at The Rotolo Law Firm in Lebanon, N.J.

The New Jersey Appellate Court recently reversed a ruling by a Burlington County Superior Court judge granting a mother permission to change her children’s surname following her divorce from their father. While the couple shares legal custody of their two children, the mother is the parent of primary residence. (1)

The couple divorced in 2010, ending an 11-year marriage. Shortly thereafter, the mother changed the children’s surname to a hyphenated version of her and her ex-husband’s last names without consulting the children’s father. The father filed with the court to have his children’s name changed back. The mother countered with her own petition to change the children’s name to her own. (1)

The procedure for changing the name of a child varies according to the state in which you live. (2) In New Jersey, the procedure for a name change is basically the same for adults and children. A petition must be filed with the court requesting the change and giving a reason for the change. Additional documentation and a hearing may be requested if necessary. Courts primarily are concerned that the change is not being done in an effort to avoid consequences of any legal action pending or for fraudulent purposes. (3)

In the case of a child’s name change, New Jersey requires both parents be involved. If only one parent files for the change, the other parent must be given the opportunity to object if he or she thinks the change would not be in the best interest of the child. (3)

When the above-mentioned case originally was heard, the judge based his ruling on the fact that the mother was the parent of primary residence which, he said, allowed for a presumption in her favor. The Appellate Court, however, said the judge was mistaken because the law upon which the presumption was based did not apply since the couple had been married at the time the children were born. Instead, the Appellate judges ruled, the best-interest test needed to be applied. This test takes into consideration several factors including how long the children had used their surname, how the children identified as a part of a family unit, and any discomfort or embarrassment the children may experience as a result of the name change. (1)

The presumption in favor of a parent of primary residence is mostly used in instances of children born out of wedlock. Even then, though, the Court noted, most states are steering away from this so it does not become an issue in divorce negotiations. It could also be considered discriminatory since parents of primary residence are primarily mothers. (1)

The above-described case illustrates how even relatively simple issues can have complications. If you or someone you know needs assistance with divorce or custody issues, contact the family law attorneys at The Rotolo Law Firm located in Lebanon, N.J., which is in Hunterdon County, New Jersey.

(1) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202539705405&slreturn=1
(2) http://www.essortment.com/change-minor-childs-last-name-24588.html
(3) http://www.lsnjlaw.org/english/courts/formslawsuits/changename/changenamenj/

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August 21, 2011

The Law Looks Differently at Mothers and Fathers

What defines a parent? For some, parents are the people to whom you are born. Others define parents as those who raise and care for you as you grow. According to Merriam-Webster.com, both definitions are correct, (1) but what about the legal definition of parent? That’s a question the New Jersey Supreme Court recently agreed to review.

The case involves a woman seeking to be identified as the legal mother of a child born to her husband and a surrogate without having to file for adoption. An appeals court previously heard the case and cited the New Jersey Parentage Act, which states that a woman is automatically granted parental rights only to a child she either carries through pregnancy or with whom she shares DNA. In this case, the husband’s sperm was used to fertilize an anonymous donor’s egg which was then implanted into a surrogate mother, leaving the wife no physical tie to the child. (2)

Prior to the child’s birth, a Camden County Superior Court Judge granted the couple’s request to be named as parents on the child’s birth certificate. The surrogate mother relinquished her parental rights three days after giving birth, the time period specified by law. All seemingly went smoothly until the Bureau of Vital Statistics questioned the wife’s parental claim. Since she did not carry the baby in pregnancy nor share DNA with the child, the Bureau claimed she needed to file for adoption as a stepparent before gaining her parental rights. (2)

This view highlights the difference in the way men and women are considered under the law. In the strictest sense of the word, parent legally “refers only to a mother or father who is related to the child by blood.” (3) However, in light of various infertility remedies, men are normally presumed to be the father to any child born to their wives during their marriage, even if the child was conceived through artificial insemination with donor sperm. This contrasts to criteria used to determine a mother’s parental rights. (2)

The Appellate Division explained the Parentage Act is based on “reproductive and biological differences” between men and women and the law affords extra protection for birth mothers. Arguments in favor of the couple in this case, however, point out that the adoption process allows for a period of time in which only one parent is legally responsible for the child. (2)

(1) http://www.merriam-webster.com/dictionary/parent
(2) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202508353619&hubtype=MAIN%20PAGE&slreturn=1&hbxlogin=1
(3) http://legal-dictionary.thefreedictionary.com/Parent+and+Child

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