Opinion
No. FA04 4000030
August 11, 2005
MEMORANDUM OF DECISION
This case involves the applicant mother's claim for custody of her now two-year-old son. The respondent appeared and filed an answer and cross-complaint, later amending the cross-complaint.
Both parties were represented by counsel and the parties submitted a custody agreement, dated May 11, 2005, which resolves all but two issues. The hearing and evidence were limited to two issues, the child's surname and section 46b-56c educational support orders.
The court makes the following findings. The applicant is the mother of the child, Dylan Chace St. Amour, born July 14, 2003. At all times relevant to this case, the applicant mother has been married to Paul St. Amour. During the course of her marriage, mother engaged in an adulterous relationship with the respondent, Gilbert D. Carvalho.
Upon learning that she was pregnant, the applicant advised the respondent of her pregnancy. He did not disavow paternity. He met with the applicant at the hospital at the time of birth. They agreed not to name the respondent father on the birth certificate. This was done not because the respondent denied paternity, but in recognition of the fact that the applicant was married to Mr. St. Amour, and, though estranged, the husband would be presumed to be the father. The parties agreed that they would undergo D.N.A. analysis to resolve any questions as to respondent's paternity, since applicant's husband was the presumed father and it could be harmful to the child to misidentify as father someone other than his biological father. The testing was done ten days after birth, and respondent was found to have a 99.99% probability of paternity by report dated August 4, 2003. CT Page 11889-fd
After the birth of Dylan, the applicant reconciled with her husband, and Dylan has been raised in their household with two older half-siblings. All three children share the same surname. Applicant's husband provided a sworn affidavit to the court averring his marriage to the applicant, the child's name and date of birth, the paternity of the respondent, and the affiant's awareness of this action since filing, and that the affiant made no claims to paternity of the child.
The parties both acknowledge that they had not discussed educational support orders with each other, and neither asked to waive the right for such an order. Conversely, neither asked that a specific order enter now. Accordingly, the court retains jurisdiction to consider the entry of an educational support order in the future upon proper motion or petition.
The respondent father wishes Dylan to bear his surname. Respondent is divorced with a 14-year-old son with whom he has a visiting relationship. He feels a cultural imperative for Dylan to bear his patronymic. He acknowledges that Dylan has been known by the applicant's surname, which is her married name. He believes, now that he has entered into a custody and visitation agreement which formalizes his parent-child relationship, that his child should share his surname.
There is no statutory provision or case law which prescribes the establishment of a child's surname. The case of Shockley v. Okeke, 48 Conn.Sup. 647, 856 A.2d time 1054 (2004) ( 37 Conn. L. Rptr. 593), is most instructive on the lack of a naming procedure.
"Whether an application for a change of name should be granted is a matter which rests in the sound discretion of the court. In exercising that discretion, the court should bear in mind that, generally speaking, independently of any court order, a person is free to adopt and use any name he sees fit. Ordinarily, therefore, an application for a change of name should be granted unless it appears that the use of the new name by the applicant will result in injury to some other person with respect to his legal rights, as, for instance, by facilitating unfair competition or fraud. When the question presented is whether the name of a minor child should be changed, the court, in line with its universal duty to protect the interests of minors, must take into consideration whether the change of name will promote the CT Page 11889-fe child's best welfare. In the present case, on the facts found, there was no indication that to change the [child's] name would cause any legal injury to anyone. The most that could be said against it was that it might hurt the [parent's] sensibilities. It did not, of course, make any change in the relationship of parent and child which existed between them." Internal citations omitted. Don v. Don, 142 Conn. 309, 311-12, 114 A.2d 203 (1955).
The focus is on the child's welfare, not the sensibilities of the parent. The current surname of the child is shared by every member of his primary household, including the applicant mother, his primary caregiver. It would not be beneficial to the child to provide him with a surname different from all those with whom he lives. The respondent's personal sensibilities are not grounds for a change, and the cultural imperative he cites does not find support in either the statutes or our case law.
Accordingly, the court finds that the applicant is the mother and the respondent is the father of the child, Dylan Chace St. Amour, born July 14, 2003. The application for change of name is denied. The court retains jurisdiction on the question of educational support orders. The agreement of the parties dated May 11, 2005 enters, as the final orders of the court and is incorporated by reference herein.
Driscoll, J. CT Page 11889-ff