In the case of Holst-Knudsen v. Mikisch, decided on March 6, 2012, the Appellate Division of the New Jersey Superior Court addressed the thorny issue of a custodial parent’s right to legally change the surname of a child from that of the other parent.

In this case, the parties were married in 2000 and had a daughter in 2005. They divorced in 2008. The Final Judgment of Divorce incorporated a Marital Settlement Agreement negotiated with the assistance of counsel which contained detailed arrangements and financial support obligations for the child between the individual parent and the non-custodial parent. Two years later, Ms. Holst-Knudsen filed a motion to compel Mr. Mikisch to remit child support through the Probation Department by wage garnishment, to modify the parenting schedule and to legally change the surname of the child to “Mikisch Holst Knudsen”. Mr. Mikisch filed opposed the relief sought.

The Marital Settlement Agreement provided that the parties would have joint legal custody with Ms. Holst-Knudsen as the primary custodial parent.

The Agreement also laid out a complex parenting time schedule base on Mr. Mikisch’s residence in South Carolina. After issuing its rulings on child support and parenting time, the trial court denied Ms. Holst-Knudsen’s request to change the child’s surname.  Ms. Holst-Knudsen appealed.

The Appellate Division reversed and remanded the issue back to the court for further proceedings. In so doing, the Appellate Division cited the seminal case of Gubernat v. Deremer, 140 N.J 120, decided by the New Jersey Supreme Court in 1995. In Gubernat, the Supreme Court held that when parents who are  not raising a child together do not agree about the child’s name, the court must resolve the issue under the “best interests of the child” standard but with a “strong presumption” that the name selected by the custodial parent is in the child’s best interests. Thus, the non-custodial parent bears the burden of proving by a preponderance of the evidence that the custodial parent’s choice is not in the child’s best interests. As stated in Gubernat, the trial court should”examine scrupulously all factors relevant to the best interests of the child” including the length of time the child has used one surname, the identification of the child as a member of a family unit, the potential anxiety or embarrassment the child might experience if he or she bears a surname different from that of the custodial parent, and any preference the child may express if sufficiently mature.

The Appellate Division went on to address its disagreement with the recent decision of another appellate panel in the similar case of Emma v. Evans which drew a distinction between children born out of wedlock and those born of married parents. The Court held that the Gubernat standard applies equally in both circumstances. If, however, the parties entered into “a detailed settlement agreement that addressed parenting issues, perhaps the parents should be on equal footing” (emphasis supplied by author). Factors to be considered are whether the parties addressed the issue in their agreement, purposely omitted it or inadvertently omitted it. The Appellate Division concluded that the trial court did not rule under current legal standards and remanded the case for further proceedings consistent with Gubernat, as discussed above.

The case is important because changing a child’s surname has consequences for the child’s self perception and relationship with his/her parents, peers, teachers and the community at large. This author personally believes that the presumption in Gubernat should be set aside and that such cases be determined on a straightforward “best interests of the child” basis.  Readers are invited to agree or disagree. 

John Eory is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Mr. Eory.