Opinion
23983.
Decided December 23, 2003.
Jane Doe appeared pro se.
No other parties appeared.
I. BACKGROUND
Petitioner mother and guardian of her daughter and son, who reside with petitioner, seeks a court order changing her name and her children's names because petitioner is a domestic violence victim; her abuser knows all her identifying information; and she fears that her and her children's lives and safety are in serious jeopardy unless she and her children change their names. N.Y. Civ. Rights Law §§ 60— 61. Therefore she also requests, as essential to their safety, that notice of their name changes not be (1) given to her daughter's father, the abuser, N.Y. Civ. Rights Law § 62(1); (2) published, N.Y. Civ. Rights Law §§ 63, 64-a; or (3) maintained as a court record accessible to the public. N.Y. Civ. Rights Law § 64-a. She attests that if the name changes are made public or disseminated, her "attacker will find out," and her and her children's safety will remain in jeopardy. Aff. of Jane Doe (Nov. 19, 2003).
In addition to petitioner's personal knowledge of the father's abuse over the course of two years and his persistent, continuing threats to kill her, hearsay evidence indicates he also has a long criminal record and is wanted by the State of Georgia, her former residence, on charges of rape, assault with a deadly weapon, possession of a firearm, and car jacking. On October 16, 2003, the New York County Family Court issued an order of protection requiring the father to stay away from petitioner and her children, whose residence the court kept confidential, and refrain from threats, intimidation, or any criminal offense against her.
II. WAIVING PUBLICATION AND SEALING THE COURT RECORD
Court ordered name changes are to be published in a designated newspaper in New York County within 20 days after the name change order is entered. N.Y. Civ. Rights Law § 63. Although only one reported decision interprets Civil Rights Law § 64-a since its enactment in 1994, § 64-a plainly authorizes waiver of publication and sealing of the court record upon a finding that publication of a name change would jeopardize the safety of the person whose name is changed. Matter of L.V., 2003 N.Y. Slip Op 23581, 2003 WL 22721402 at *1 (Civ.Ct. N.Y. Co.). The history of domestic violence inflicted upon petitioner, her fear of the perpetrator's future retribution against her, and her and her children's need to conceal their identity and whereabouts and secure their safety from the perpetrator are plainly circumstances to which § 64-a applies, dictating an exemption from publication and a sealing of the record. Matter of L.V., 2003 WL 22721402 at * 1-2.
In sum, based on the verified petitions and accompanying affidavits, publication of the name changes for petitioner, her daughter, and her son would jeopardize their safety. N.Y. Civ. Rights Law § 64-a. Therefore the court exempts them from the requirements of Civil Rights Law §§ 63— 64 to publish petitioner's and her children's name changes and seals the records of this name change proceeding. The records may be opened only by a court order, at petitioner's request, or at the request of her daughter or son after the child reaches age 18 years. N.Y. Civ. Rights Law § 64-a.
Because the father of petitioner's daughter is living, even if convicted and sentenced for a felony, he retains his rights to property and to transfer it by will. N.Y. Civ. Rights Law § 79-b; Matter of Fein, 51 Misc.2d 1012, 1014 (Civ.Ct. N.Y. Co. 1966). See N.Y. Civ. Rights Law § 79(1); Matter of Petras, 123 Misc.2d 665, 667 (Civ.Ct. Queens Co. 1984). His daughter retains her concomitant right to inherit from her father, regardless of any change in her name. E.g., Matter of Gratz, N.Y.L.J., Aug. 23, 1991 (Surr.Ct. N.Y. Co.). Such a name change, however, particularly if not made public, will make it extremely difficult to locate her to distribute any inheritance. While far from a complete solution to this dilemma, the records of this name change proceeding also may be opened upon evidence that the father is deceased.
As the father neither is a party nor has appeared in this proceeding, it remains unlikely that anyone seeking to locate the daughter upon her father's death will search this court's records. As the father is a party to the New York County Family Court proceeding that sought an order of protection, the Clerk of this court shall transmit a copy of this decision and order and the accompanying name change order to the New York County Family Court Clerk, to be filed with the court's records under Docket # O-12386-03. The portion of the Family Court record transmitted from this court similarly shall be sealed and may be opened only by a court order, at petitioner's request, at the request of her daughter or son after the child reaches age 18 years, or upon evidence that the daughter's father is deceased.
III. DISPENSING WITH NOTICE TO THE FATHER
Petitioner's request to dispense with notice to her daughter's father is a more difficult issue. Adults always may change their name without any court order as long as the different name is not to perpetrate fraud or interfere with another person's rights. Matter of Stempler, 110 Misc.2d 174, 175 (Sup.Ct. N.Y. Co. 1981); Matter of Linda Ann A., 126 Misc.2d 43, 44 (Sup.Ct. Queens Co. 1984); Matter of Conde, 186 Misc.2d 785, 786 (Civ.Ct. Kings Co.); Matter of Sakaris, 160 Misc.2d 657, 660 (Civ.Ct. Richmond Co. 1993). Civil Rights Law §§ 60— 61 and 63 do not diminish the right to change one's name without an order. Matter of Linda Ann A., 126 Misc.2d 43; Matter of Conde, 186 Misc.2d at 786. Nor does the statutory scheme prevent an adult from changing a child's name. When an adult invokes the judicial procedure to change a child's name more expeditiously than through usage, however, considerations in addition to fraud or interference with other persons' rights may come into play, as the statutes require the court to determine whether the child's name change will promote her interests. N.Y. Civ. Rights Law § 63; Matter of Sakaris, 160 Misc.2d at 660, 663. See Matter of Stempler, 110 Misc.2d at 175; Matter of Linda Ann A., 126 Misc.2d at 44.
Where one parent petitions for a court ordered change of a child's name, notice of the petition and of when and where it will be presented is to be served on the other parent. N.Y. Civ. Rights Law § 62(1). Civil Rights Law § 62(1) does not contain any authorization comparable to § 64-a for a waiver of this notice upon a finding that notice of the requested name change would jeopardize the safety of the person whose name is to be changed. The only exemptions from the notice requirement are when the second parent is (1) deceased or (2) "cannot be located with due diligence within the state, and . . . such person has no known address outside the state." N.Y. Civ. Rights Law § 62(1).
Petitioner makes no such showing here. If anything, the other parent of petitioner's daughter is in all too frequent contact with petitioner.
Although the record indicates the father has been convicted of "crimes," it is unclear whether he has, as yet, been convicted of a felony. Doe Aff. (Nov. 19, 2003), Ex. 1. Upon his conviction for a felony and sentence in a state correctional facility for longer than a day, Civil Rights Law § 79(1) would deprive him of "all" his civil rights for the sentence's duration, regardless of parole. See Matter of Petras, 123 Misc.2d at 667. The father's rights to notice of the petition to change his daughter's surname from his to another surname and to an opportunity to appear before the court prior to it authorizing the name change are thus among the rights suspended by a felony sentence. N.Y. Civ. Rights Law §§ 62(1), 79(1); Matter of Petras, 123 Misc.2d at 667-68. See Matter of Fein, 51 Misc.2d at 1015.
While the court could exercise its inherent power to give notice of a child's name change petition to a parent who has lost his rights to such notice, that power derives not from those lost rights, but from the requirement to determine whether the name change will promote the child's interests. N.Y. Civ. Rights Law § 63. If information from the affected parent might assist that determination, the court might invite the input through notice to the parent. Matter of Fein, 51 Misc.2d at 1015; Matter of Petras, 123 Misc.2d at 668.
Where a parent objects to the name change or even where no notice is given, but in recognition that parental rights have not been terminated, a child's interests may dictate that a change in her surname, particularly from the objecting or absent parent's surname to another, wait until the child is mature enough to change her name on her own or at least to understand the proceeding. Matter of Fein, 51 Misc.2d at 1016; Matter of Petras, 123 Misc.2d at 671-73. Here, petitioner's daughter is less than two years old.
Here, however, whether the father is entitled to notice or given notice in any event, it is difficult to conceive of what persuasive objection he could make to changing his daughter's name to her mother's name or what interest of the child would be promoted by denying the request. He could petition to change his daughter's name back to his, should the daughter reside with him or depend on him for support, care, and guidance, for example. See State of New York ex rel. Spence-Chapin Servs. to Families Children v. Tedeno, 101 Misc.2d 485, 489 (Sup.Ct. N.Y. Co. 1979). She also could change her name back to his upon reaching the age of majority. In this enlightened age, even a father who provides support, care, and guidance to his daughter has no more compelling claim that she bear his surname than a supporting, caring, and guiding mother has that her daughter bear the mother's surname. See Cohan v. Cunningham, 104 A.D.2d 716 (4th Dep't 1984); State of New York ex rel. Spence-Chapin Servs. to Families Children v. Tedeno, 101 Misc.2d at 488; Matter of Sakaris, 160 Misc.2d at 663. Many children now bear the different surnames of both parents. Other children, particularly if conceived through a sperm donor, do not know their biological father's identity and bear their mother's surname. Here, the mother's son, whose father is deceased, already bears his mother's surname. See Matter of Sakaris, 160 Misc.2d at 666. Any stigma tradition may have attached to "deprivation" of a father's surname has dissipated. Matter of Fein, 51 Misc.2d at 1016; Matter of Petras, 123 Misc.2d at 672. See Matter of Goldstein, 104 A.D.2d 616 (2d Dep't 1984).
Here, the father's identity is known, and nothing indicates his parental rights have been terminated, but the record demonstrates that any relationship he may have enjoyed with his daughter has eroded. He is not supporting her, nor does the record indicate he has offered to support her or previously supported her. Matter of Fein, 51 Misc.2d at 1016, 1018; Matter of Sakaris, 160 Misc.2d at 660. Although he has attempted to communicate with her mother, his articulated motive is disturbingly contrary to any normal continuing interest in or desire to associate with his daughter. Id. at 660, 664. See Matter of Petras, 123 Misc.2d at 672-73. The primacy of his parental rights has given way to abuse and other misconduct which, even if not specifically directed at his daughter, is likely to have an adverse and dramatic secondary impact on her. Id. at 671. See Matter of Fein, 51 Misc.2d at 1016-17.
In view of the father's "gross misconduct and the most flagrant violations of his duties as a . . . father," Matter of Fein, 51 Misc.2d at 1018, for purposes of disputing the mother's request to change their daughter's name, the father may be considered to have "abandoned" his rights under Civil Rights Law § 62(1). Matter of Fein, 51 Misc.2d at 1017; Matter of Sakaris, 160 Misc.2d at 660. If anything, the continued use of his name may stigmatize his daughter, as well as adversely affect her physical welfare. State of New York ex rel. Spence-Chapin Servs. to Families Children v. Tedeno, 101 Misc.2d at 487. See Matter of Goldstein, 104 A.D.2d 616; Matter of Fein, 51 Misc.2d at 1017-18.
Considering the father as thus having positioned himself similarly to other parents who have lost their rights, see N.Y. Civ. Rights Law § 79-a, no perceivable information from him would assist in determining whether the name change will promote the child's interests, N.Y. Civ. Rights Law § 63, so as to prompt a notice to him inviting his input. Matter of Fein, 51 Misc.2d at 1015; Matter of Petras, 123 Misc.2d at 668. To the contrary, inviting the father's input is likely to incite an unacceptable risk of danger to the mother and children. These circumstances are equivalent not only to the father having lost his rights, but also to the circumstances recognized as making notice to the father impossible. N.Y. Civ. Rights Law § 62(1); Matter of Conde, 186 Misc.2d at 789-90. Based on the evidence of danger to petitioner and her children, the father of the petitioner's daughter cannot be located and contacted without jeopardizing the safety of petitioner, her daughter, and her son.
In addition, given the father's conduct, he is not "due" any further "diligence" as required by Civil Rights Law § 62(1) in an effort to locate him. Viewed another way, to provide the father notice of the petition to change the child's name would be so unacceptably dangerous as to render notice irresponsible, also lacking the statutory "diligence." N.Y. Civ. Rights Law § 62(1). Finally, notice would defeat the purpose of § 64-a, the exemption from publication to which petitioner and her children are entitled.
In sum, where the source of physical danger entitling a person whose name is to be changed to the publication exemption, N.Y. Civ. Rights Law § 64-a, is the person's parent, and that parent, by his conduct, effectively has abandoned his rights concerning his child, the only reasonable interpretation of Civil Rights Law § 62(1) is to permit a similar waiver of notice to that parent. Ellington Constr. Corp. v. Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 N.Y.2d 114, 124-25 (1990); Zappone v. Home Ins. Co., 55 N.Y.2d 131, 137 (1982); Statewide Roofing v. Eastern Suffolk Bd. of Coop. Educ. Servs., 173 Misc.2d 514, 518-19 (Sup.Ct. Suffolk Co. 1997); Commissioner of Social Servs. v. Jessie B., 111 Misc.2d 617, 621-22 (Fam.Ct. N.Y. Co. 1981). Only this interpretation gives meaning to both statutes. Otherwise § 62(1) would inflict grave risk of physical danger and illogically permit perpetration of the very threats to physical safety § 64-a is designed to avoid, completely negating the latter statute's effect. Zappone v. Home Ins. Co., 55 N.Y.2d at 138; Statewide Roofing v. Eastern Suffolk Bd. of Coop. Educ. Servs., 173 Misc.2d at 518; Matter of Marino S., 181 Misc.2d 264, 275 (Fam.Ct. N.Y. Co. 1999); Matter of Gabriel M., 128 Misc.2d 313, 317 (Fam.Ct. Kings Co. 1985).
IV. DISPOSITION
For all the reasons discussed above, the court thus dispenses with the requirement of Civil Rights Law § 62(1) to give the father of petitioner's daughter notice of the petition and an opportunity to appear before the court prior to it authorizing the daughter's name change. As also set forth above, the court further exempts petitioner and her two children from the requirements of Civil Rights Law §§ 63— 64 to publish petitioner's and her children's name changes and seals the records of this name change proceeding. The Clerk of this court shall transmit a copy of this decision and order and the accompanying name change order to the New York County Family Court Clerk, to be filed with the court's records under Docket # O-12386-03. The portion of the Family Court record transmitted from this court also shall be sealed. The records of this proceeding in this court and in the Family Court may be opened only by a court order, at petitioner's request, at the request of her daughter or son after the child reaches age 18 years, or upon evidence that the daughter's father is deceased. N.Y. Civ. Rights Law § 64-a.