Gubernat v. Deremer

• Decision Date: 11 May 1995
• Parties: , 63 USLW 2748 Alan GUBERNAT, Plaintiff-Respondent, v. Karen E. DEREMER, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 120

140 N.J. 120

657 A.2d 856, 63 USLW 2748

Alan GUBERNAT, Plaintiff-Respondent, v. Karen E. DEREMER, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 18, 1995.

Decided May 11, 1995.

Lawrence S. Lustberg, Newark, for appellant (Crummy, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Barbara A. Hedeen, of counsel; Mr. Lustberg and Jonathan Romberg, on the briefs).

James C. Richardson, Watchung, for respondent (Mr. Richardson, attorney; Anthony R. Cambria, Staten Island, NY, on the brief).

The opinion of the Court was delivered by

STEIN, J.

The question presented by this appeal concerns the right of a father, in cases involving disputes over a child's surname, to insist that the child bear his surname. The issue arises in the context of a child, born to unmarried parents, who was given his mother's surname at birth, the father having refused to acknowledge paternity. When his paternity was established by tests performed approximately seven months later, the father acknowledged paternity and commenced visitation. Shortly thereafter, the father instituted litigation seeking joint custody, increased visitation, and a change of the child's surname. The trial court awarded the father joint custody and increased visitation, but the child's mother retained primary physical custody. The trial court, recognizing "the father's interest in maintaining his relationship with his child for their mutual benefit," ordered that the child assume the father's surname. The Appellate Division affirmed in an unreported opinion.

The recognition by the courts below of a preference for paternal surnames is supported by Western custom and law spanning more than six centuries. The practice of children assuming the father's surname is traceable to the English medieval property system in which the husband controlled all marital property. That preference continued in America, reflecting not only the long-standing English tradition but also the societal distinctions in the status of men and women. Until the latter part of this century, the assumption that children would bear their father's surnames was a matter of common understanding and the preference for paternal surnames was rarely challenged. But the historical justifications that once supported a tradition in the law for children to bear paternal surnames have been overtaken by society's recognition of full legal equality for women, an equality that is incompatible with continued recognition of a presumption that children must bear their father's surname. That presumption shall no longer apply in this State. We hold instead that in contested cases the surname selected by the custodial parent--the parent primarily charged with making custodial decisions in the child's best interest--shall be presumed to be consistent with that child's best interests, a presumption rebuttable by evidence that a different surname would better serve those interests. We apply that rule of law to the facts at hand, and reverse the judgment of the Appellate Division.

I

Scott Thomas Deremer was born July 4, 1991, the son of plaintiff Alan Gubernat and defendant Karen Deremer. The parties decided not to marry. Plaintiff initially doubted his paternity, and was not present at the birth of Scott, nor was he named on Scott's birth certificate. Karen assumed physical custody of Scott and has retained custody throughout. Alan first saw his son in July or August 1991, but "didn't know [Scott] was my son at that time." After plaintiff requested a determination of paternity, blood tests were conducted in January 1992. In February 1992, when the tests confirmed that Alan was the father, he immediately admitted paternity, contacted Karen, and attempted to establish a relationship with his son. Alan and Karen informally arranged for Alan to visit his son two or three times each week.

Subsequent disagreement between the parties regarding the extent of Alan's visitation rights resulted in an order issued by the trial court in March 1992 granting Alan temporary visitation rights, consisting of two hours on Sunday afternoon and two hours on Wednesday evening. Shortly thereafter, Alan instituted this action seeking joint custody of Scott, joint consultation on decisions affecting his education, health, and welfare, greater visitation privileges, and the change of his name to Scott Thomas Gubernat. In May 1992, Alan and Karen agreed to modify Alan's visitation schedule to permit visitation every Sunday from 10:00 a.m. to 5:00 p.m.

In July 1992, the trial court held a hearing on issues related to custody and visitation. Based on proofs presented at the hearing, the court found "as a fact that both parents, both the mother and father, are loving parents of this child." The evidence adduced indicated that Karen had been employed for the past five years by the World Apostolate of Fatima. She testified that she had conscientiously discharged the day-to-day responsibilities of parenthood, that she had borne sole responsibility for Scott's care during infancy, and had received strong support from her family. The evidence confirmed that Alan also enjoyed family support in caring for Scott, both from his parents, who lived next door, and from his sisters. Alan was self-employed as a mason and was described by a construction contractor as reliable, hard-working, and competent. He testified to his close relationships with his sister's children. He stated that during visitation he would play with his son, or take him to visit members of his family. Alan testified that he had purchased equipment that Scott needed, including a stroller, a walker, a baby carriage, and a play pen.

When asked by his counsel why he wanted his son to bear his surname, Alan testified:

Well myself, I would want my son to recognize who his father is. And I know that's not just in the name alone, it's also the time we spend. It is important for me when he deals with other children as he gets older to see that he, yes he does have a father and he has a father who cares and will always be there for him.

On cross-examination, Alan responded that his desire for Scott to bear his surname was intended to assure Scott that "he always has a father." Alan stated that by bearing his surname, his son would "know that whatever happened in the future, if God forbid if Karen moves to another State or something like that, that ... he will always have a father and know that he was always there for him or made every attempt to."

Karen testified that she opposed both the imposition of the paternal surname and the use of the hyphenated name Deremer-Gubernat. She explained the basis of her objection: "I believe since the child's birth I have been the primary caretaker of the child. I also feel that it's easier if the child's last name matches my last name. We live in a small local area. The Deremer name is know[n]." The judge questioned Karen directly whether she ever "expect[ed] to get married," because if "some day assuming you get married ... you would have a situation where you have one name and your child has another name." Karen replied that that was a "difficult question[ ] to answer under the circumstances," but "[r]ight now I can say no."

The trial court awarded Alan joint legal custody of Scott and granted liberal visitation privileges. Additionally, the court determined that the child should assume the surname of the father. The court noted that the "father's desire to have progeny and also to have some one carry on his name is proper. It's a right that the father has." The court determined that the paternal right to name the child carries little relevance if its purpose is in "protecting [the father's] ego or in preserving his perceived male prerogatives," but to the extent "the right recognizes the father's interest in maintaining his relationship with his child for their mutual benefit, it becomes highly relevant." Concluding that the effect on the child of carrying the maternal surname might be to contribute to the child's "[estrangement] from the father who exhibits a desire to preserve a paternal relationship," the court ruled that the child will henceforth be known as Scott Thomas Gubernat. Defendant obtained a stay in order to appeal the decision with respect to the name change. See Rule 2:9-5.

In January 1993, the Appellate Division remanded the matter to the Chancery Division "to permit the aforesaid trial judge to clarify the findings of fact and conclusions of law with respect to the furtherance of the best interests of the infant child in effecting a change of the child's surname." In March 1993, the trial court issued an opinion supplementing its prior decision. The court reiterated its determination that the child's interests would not be served by retaining the maternal surname, which could represent to the child a rejection by his father, although the "plaintiff ... has expressed a continuous and enthusiastic desire to participate actively in the upbringing of his son." The court rejected Karen's "main objection to the child's retention of the father's surname [as] that she has been the primary caretaker of the child since his birth, a factor which she claims should allow the child to take her surname."

In an unreported opinion, the Appellate Division affirmed. The court found the equities were no worse than in equipoise, but noted that a child's paternal identity and its "resulting bond with his father" was of importance in strengthening the relationship between the child and the non-custodial parent, and therefore determined that bearing the paternal surname was in the best interests of the child. We granted certification. 137 N.J. 313, 645 A.2d 141 (1994).

II

The term "surname" comes from the French word "surnom"--"sur" meaning above or beyond, "nom" from the Latin "nomen," meaning name. Yvonne M. Cherena Pacheco, Latino Surnames: Formal and Informal Forces in the United States Affecting the Retention and...