Doherty v. Wizner

• Citation: 150 P.3d 456,210 Or. App. 315
• Decision Date: 27 December 2006
• Docket Number: 04CV083; A127262.
• Parties: Chad DOHERTY, Respondent, v. Christy WIZNER, Appellant.
• Court: Court of Appeals of Oregon

150 P.3d 456

210 Or. App. 315

Chad DOHERTY, Respondent, v. Christy WIZNER, Appellant.

04CV083; A127262.

Court of Appeals of Oregon.

Submitted on Record and Briefs December 16, 2005.

Decided December 27, 2006.

Dale L. Smith, Hermiston, filed the brief for appellant.

Annetta L. Spicer, Heppner, filed the brief for respondent.

Before WOLLHEIM, Presiding Judge, and HASELTON, Judge, and HARRIS, Judge pro tempore.

HARRIS, J., pro tempore.

Christy Wizner (mother) appeals a judgment in a filiation action filed by Chad Doherty (father) regarding a six-week-old girl in mother's custody. At issue in this appeal is that aspect of the trial court's judgment granting father's request to have the child's last name changed from mother's last name to father's last name. Mother assigns error to that disposition on the ground that the trial court applied the incorrect legal standard to the name change ruling.¹ On de novo review, ORS 19.415(3), we agree with mother. Accordingly, we reverse the disposition of the name change, but otherwise affirm.

I. BACKGROUND

A child was born to mother and father on April 8, 2004. The child's birth certificate identified the child by mother's surname. Father filed this filiation action on May 18, 2004. During the pendency of the action, mother and father were able to resolve issues concerning father's paternity, father's support obligation, and father's parenting time and mother's continued custody. The only remaining issue before the trial court was father's request to have the child's last name changed from mother's last name to father's last name. On November 19, 2004, the court conducted a hearing on the question of which surname the child should be given. The following facts were established at the hearing: (1) mother has had custody of the child since the child's birth; (2) the name "Wizner" is the surname of mother's former spouse; (3) mother is the custodial parent of three children with her former spouse, ages three, six, and eight at the time of the hearing; (4) the other three children also use the surname Wizner; (5) the parties have been following a parenting plan that allows father weekly contact with the child; and (6) father has been paying support for the child.

Both parties testified. Father testified that the infant should have his last name "[b]ecause she has no blood of Wizner in her. She is my child, our child, but I just grew up that way." Mother testified that "I just think it would be a whole lot easier on the children * * * to keep the same last name."

After hearing the testimony of the parties, the court acknowledged that it was not clear what "standard" should be followed under the circumstances presented, but that it seemed prudent to follow the custom of naming a child after a parent the child is related to "by blood." The court reasoned that the child should have the name of the father (Doherty) because the mother's name (Wizner) is not a family name that the child is related to by blood, and entered judgment accordingly.

On appeal, mother asserts that the trial court did not properly apply the "best interest of the child" standard to the name change. Had it done so, mother argues, father's request would have been denied because it is in the child's best interest to have the surname of her mother and other siblings. Conversely, father contends that Oregon law requires that the trial court recognize the protected interest of the father in having the child bear his surname. We begin our discussion by briefly reviewing the historical development of surnames in America.

II. ORIGIN AND HISTORY OF SURNAMES IN AMERICA

Many different naming systems exist throughout the world.² The prevailing custom in most western Anglo-Saxon based cultures is for one or both parents to present a child with three names at birth: the first or given name,³ a middle name, and a last name or surname.⁴⁵ The surname for children of married parents is usually inherited from the father.⁶ The practice of using surnames in America finds its roots in the traditions which developed after the Norman Conquest in 1066.⁷ After the Conquest, old Saxon names were gradually replaced with a limited number of Norman names.⁸ Over time, this resulted in many people using the same names.⁹ This development, along with growing populations, created the need to take a second name so that individuals could be separately identified.¹⁰

Initially, surnames were drawn from a number of sources and were not passed down from generation to generation.¹¹ Over time, however, surnames became hereditary and were used to facilitate the inheritance of property.¹² The custom of passing the father's surname on to the children was further developed in response to England's legal system and social practices in which the ownership and management of all marital property was vested in the husband through what came to be called the doctrine of coverture.¹³ Under this doctrine, the wife's legal identity was subsumed in the husband's. The husband had all legal rights, duties, and powers with respect to the children of the marriage and the children born of the marriage were given the surname of their father. Lisa Kelly, Divining the Deep and Inscrutable: Toward a Gender-Neutral, Child-Centered Approach to Child Name Change Proceedings, 99 W. Va. L. Rev. 1, 19-21 (1996).

When children were born to unmarried parents, different customs were followed. This country adopted the practice developed from the English common law which maintained that a child born to unmarried parents was a child of no one.¹⁴ This usually meant that the state was required to take responsibility for the care and custody of those children. Governments eventually relieved themselves of their support and custody obligations by declaring that children born to unmarried parents were the children of the mother.¹⁵ Based on this practice, the child was either given the surname of the mother or the mother was given the right to name the child. Id. at 34-35, 46-47; Karen Czapanskiy, Volunteers and Draftees: The Struggle for Parental Equality, 38 U.C.L.A. L. Rev. 1415, 1423-24 (1991).

This country has followed the naming customs and practices adopted from English common law and traditions until recent times. Beginning in the latter half of the twentieth century, traditional naming practices, writes one commentator, were recognized as "com[ing] into conflict with current sensitivities about children's and women's rights." Richard H. Thornton, The Controversy Over Children's Surnames: Familial Autonomy, Equal Protection and the Child's Best Interests, 1979 Utah L. Rev. 303. Those changes accelerated a shift away from the interests of the parents to a focus on the best interests of the child. The law in this area continues to evolve today mainly in the context of paternity and custody actions.¹⁶

III. THE "BEST INTEREST OF THE CHILD" STANDARD

The "best interest of the child" standard has long been looked to by the courts as a guide to resolving disputes relating to children.¹⁷ In this country, the best interest standard has historically been used in most family law cases involving children, including in disputes over custody, adoption, and neglect.¹⁸ In more recent times, this standard has been applied by the courts to disputes between parents over the name a child should use.¹⁹ In this state, the Oregon Supreme Court first applied this standard to a naming dispute in the case of Ouellette v. Ouellette, 245 Or. 138, 420 P.2d 631(1966), where the court concluded that "the welfare of the children" was not furthered by mother's decision to informally alter the spelling of the long-used paternal surname of the children. Subsequently, the "welfare" or "best interest" of the child standard²⁰ has been followed by this court in naming dispute cases involving children, starting with the case of Gleason v. Michlitsch, 82 Or.App. 688, 690 n. 1, 728 P.2d 965 (1986), where the court concluded that "[b]oth the statutes governing filiation actions, * * * and the statutes governing name changes, * * * suggest that [the best interest of the child standard] is the correct standard." As previously stated by this court, to change a child's name, the party requesting the change bears the burden of showing "that the change of name is in the child's best interest." Tibbetts and Mueller, 183 Or.App. 379, 390, 52 P.3d 1067, 1073 (2002); see also Aylsworth v. Adams, 85 Or.App. 382, 736 P.2d 225, rev. den., 303 Or. 700, 740 P.2d 1213 (1987).

Over the years, the "best interest of the child" standard has developed in this country through state courts and legislatures towards a more gender-neutral and child-centered inquiry. It is well established law today that neither parent has a superior right in determining the child's last name.²¹ The right to name a child is a privilege belonging equally to both parents. Courts across this country have set aside those naming practices of the past that endorse presumptions and preferences that favor one parent over another based upon marital status,²² gender,²³ or custodial designation,²⁴ because such presumptions and preferences are not consistent with determining the best interest of the child. These outdated naming practices have been replaced with a requirement that the court determine what is in a child's best interest, avoiding any interests not supported by the evidence or founded on presumptions that favor one parent over another.

The inquiry, then, is to determine, from the facts given to us by the record, what is in this child's best interest. There is no definitive list of factors to consider when deciding what would be in the child's best interest; however, several jurisdictions, including Oregon, have identified factors a court should consider—when they exist and are appropriate in any given case—in the process of deciding what surname will serve the best interests of the child. These factors include the following:

1. The identity and...