Opinion
06-29-2023
In the Matter of the Application of Megan P., as Parent, Petitioner, For Leave to Change the Name of Sebastian Oliver James R. to Sebastian Oliver James P-R.
Unpublished Opinion
DECISION AND ORDER
HON. DANDREA L. RUHLMANN, ACTING SUPREME COURT JUSTICE
Petitioner-Mother Megan P. ("Mother") seeks to change the surname of her six-year-old son, Sebastian Oliver James R. (DOB: XX/XX/2017) (the "child") from R. to P-R, thus enabling the child to have the surname of both of his parents. Corry Lou Cross R. ("Father") objected at the hearing. The Court finds Father's objections were not reasonable, and considering the best interests of the child, found they will be substantially promoted by the name change. Mother's application is granted.
Mother filed a petition to change the surname of her child which was filed with the Monroe County Clerk on October 27, 2022. Father was served and appeared before the Court. Both parents were advised of the right to counsel and both waived counsel and proceeded pro se. Mother provided a certified transcript with the raised seal of Michael Mendoza, M.D., vital records, of the Monroe County Department of Health, certifying that the document is a true copy of Sebastian Oliver James R.s' birth certificate number XXXXX of the New York State Department of Health. The child has a paternal half-sibling, Caleb who is 15-years old. It is undisputed that the child idealizes Caleb. Caleb's surname is R. The child has no other siblings. Father, Mother and child at times attend Caleb's hockey games together. In March, 2023 they ate lunch at the Buffalo Wild Wings restaurant. The child lives with Mother and his maternal grandparents. Mother has always had primary physical residency. The Court sua sponte takes judicial notice of (1) an Order of Custody and Parenting Time entered August 28, 2018, by Family Court Referee Thomas W. Polito, Esq. which, among other things, granted the parents joint custody, with Mother having physical custody of the child and Father's parenting time was to be supervised for at least a year; and (2) a modified Order entered March 3, 2020, by Family Court Referee Thomas W. Polito, which among other things, granted Father periods of unsupervised visitation with the child, as the parties mutually agreed, twice a week to be expanded as Father became more consistent with visits; and (3) an Order of Support entered September 17, 2019, by Family Court Support Magistrate Deborah K. Owlett, which among other things, ordered Father to pay the amount of $96.00 per week for the child. The Court heard testimony from Mother and Father and found them both to be credible. The child began and continues in counseling with Mavia Austin A., after he hit other children at school. His behaviors improved, he no longer hits other students. Father testified he calls the child Sebastian. Mother testified, she, her family and the child's teachers and counselor call him Oliver. The Court makes no findings regarding the child's first name.
If the petition is true, and there is no reasonable objection to the change of name proposed and if the interests of the infant will be substantially promoted by the change, then the court shall order the name change (Civil Rights Law § 63)." [T]he issue is not whether it is in the infant's best interests to have the surname of the mother or father, but whether the interests of the infant will be promoted substantially by changing his or her surname. Such a determination requires a court to consider the totality of the circumstances" (Matter of Niethe, 151 A.D.3d 1952, 1953 [4th Dept 2017], internal quotations omitted [case remitted for a hearing because the Fourth Department found father had a reasonable objection to Mother's petitions to change their sons' surnames to her maiden surname because it was a surname not used by either parent or the sons'-half sibling]).
A list of factors for a court to consider (but is in no way exhaustive) and what the Court did consider includes (1) the extent to which a child identifies with and uses a particular surname; (2) the child's expressed preference, if the child is of sufficient age and maturity to articulate a basis for preferring a particular surname; (3) whether the child's surname differs from the surname of the custodial parent; (4) the effect of the proposed name change on the child's relationship with either parent; (5) whether the child's surname is different from any of his siblings and the degree to which he associates and identifies with siblings on either side of the family; (6) whether the child is known by a particular surname in the community; (7) the misconduct, if any of a parent, such as the failure to support or visit with the child; and (8) the difficulties, harassment, or embarrassment that the child may experience by bearing the current or opposed surname (see Matter of Eberhardt, 83 A.D.3d 116 [2d Dept 2011]).
The child's surname to date is R. At six years old his vested interest in keeping his surname is "not as great as compared to an older child" (Matter of Bafumo, 171 A.D.3d 1328, 1330 [3d Dept 2019] [father's application to change his five-year old's surname to a hyphenated combination of both mother's and father's surnames was granted and affirmed over Mother's objection]). "[T]he sharing of a surname by a child with the parent he or she lives with is a legitimate point of concern because it minimizes embarrassment, harassment, and confusion in school and social contracts" (Matter of Noah ZZ, 186 A.D.3d 1806 [3d Dept 2020] and see Matter of John Phillip M.-P., 307 A.D.3d 318 [2d Dept 2003]). As is the case before this Court, "where the mother is merely seeking to add her last name and not to eliminate the father's name, the fact that the father supports the child should not preclude the proposed name change" (Eberhardt, 83 A.D.3d 116, 220). "To the extent the father's objection was based on traditional values... to give a child the father's name, the objection is not reasonable, because neither parent has a superior right to determine the surname of the child" (id. at 221). "[W]e do not accord preference to paternal surnames in the context of determining best interest" (id.). After considering the totality of the circumstances the Court finds the child's best interests will be substantially promoted by the proposed name change (see Matter of Segool, 167 A.D.3d 1598 [4th Dept 2018]). The Court notes that Mother withdrew and waived her request for an appointment of an attorney for the child. Father likewise waived such right.
NOW THEREFORE, it is
ORDERED that the petition filed, to change the surname of Sebastian Oliver James R. (DOB: XX/XX/2017) to Sebastian Oliver James P-R. is granted, and that the Minor shall be known by no other name: and it is further
ORDERED that this Order shall be entered and the papers on which it was granted be filed in the Office of the County Clerk of Monroe County; and it is further
ORDERED that a copy of the filed Order shall be submitted by Mother to the Monroe County Child Enforcement Unit; and it is further
ORDERED that the authorizations contained herein are contingent upon full compliance with the provisions and directives of this Order.