Harris, In re
| Decision Date | 21 June 1977 |
| Docket Number | Nos. 13840,13841,s. 13840 |
| Citation | 160 W.Va. 422,236 S.E.2d 426 |
| Court | West Virginia Supreme Court |
| Parties | PETITION for Change of Name of Cynthia Louise HARRIS to Cynthia Louise Struble. PETITION for Change of Name of James Edward HARRIS III to James Paul Struble. |
1. Notwithstanding W.Va.Code, 48-2-23 (1969) which does not authorize a court to restore the maiden name or name of a former husband to a woman with living children as part of divorce proceedings, W.Va.Code, 48-5-1 (1969) et seq. which permits any person to change his name applies equally to divorced women, and such women have an absolute right to change their names under W.Va.Code, 48-5-1 (1969) et seq. if they otherwise comply with W.Va.Code, 48-5-3 (1969).
2. Before the name of a minor child with a living father may be changed pursuant to W.Va.Code, 48-5-1 (1969) et seq., the father of the child must be served with actual notice of the proceedings, or if his whereabouts are unknown, then it must appear to the court's satisfaction and upon the record that reasonable diligence has been used to give him actual notice in addition to notice by publication.
3. Children bear the surnames of their fathers by custom and usage in this society, and where a father who has exercised his parental rights and discharged his parental responsibilities is dead, or a living father exercises his parental rights and discharges his parental responsibilities, the name of a minor child cannot be changed from that of the father unless upon proper notice and by clear, cogent, and convincing evidence it is shown that such change will significantly advance the best interests of the child.
4. Where a father has abandoned his parental rights and it is in the best interests of a child to have his name changed, a court may upon proper notice order such change under W.Va.Code, 48-5-1 (1969) et seq.; provided, however, that in no event shall proof of abandonment for name change purposes be less than that required to divest a father's parental rights under the adoption statute, W.Va.Code, 48-4-1 (1976).
William B. Carey, Berkeley Springs, for petitioner.
The Court granted these two appeals and consolidated them for decision in order to settle the law in this State on the right of a divorced woman with minor children to change her name and the right of the guardian of a minor child to have the child's name changed.
Cynthia Louise Harris petitioned the Circuit Court of Morgan County in August 1976, to change her name from Cynthia Louise Harris to Cynthia Louise Struble. She alleged that she had been married to James Edward Harris, Jr. and that by order of the Circuit Court of Manatee County, Florida, she was divorced from James Edward Harris, Jr. but that the divorce order did not restore her maiden name of Struble. At the same time Cynthia Louise Harris petitioned the Circuit Court of Morgan County to change the name of her minor son, James Edward Harris, III, who was in her custody, to James Paul Struble. Notice of both of these proposed name changes was published in The Morgan Messenger, a newspaper of general circulation in Morgan County, as legal advertisements and both appeared for two consecutive weeks in compliance with W.Va.Code, 48-5-1 (1969). 1
The circuit court denied both petitions. In the case of Mrs. Harris, the circuit court denied the petition on the grounds that the court granting her divorce had declined to restore her maiden name because she had a minor child, and in the case of the child, James Edward Harris, III, the court denied the petition on the grounds that to grant the name change the court would, "in effect bastardize this child."
We recognize that W.Va.Code, 48-2-23 (1969) provides that a court, upon granting an annulment or divorce, may restore a wife's maiden name or the name of a former husband if the woman has no living children. 2 This Code section, by its terms, precludes restoration of a wife's maiden name in a divorce proceeding if there are living children of the marriage. However, W.Va.Code, 48-5-1 (1969) provides that any person may change his or her name, or that of his child or ward.
The Court finds that W.Va.Code, 48-5-1 (1969) does not exclude a divorced wife with living children from its provisions, and accordingly the Court holds that any woman who has been divorced, notwithstanding the fact that she has living children by that marriage, may petition either to have her maiden name restored or to change her name to some other name under the provisions of W.Va.Code, 48-5-1 (1969) et seq., and she has an absolute right to such change if there are otherwise no impediments under W.Va.Code, 48-5-3 (1969), notwithstanding Code, 48-2-23 (1969).
The question of whether Mrs. Harris' petition to change the name of her infant son should have been granted is more difficult. This is a case of first impression in West Virginia and does not admit to an easy solution. It is a classic case for the application of equitable principles. W.Va.Code, 48-5-1 (1969) specifically provides that any person may apply to the circuit court for a change of name of his or her child or ward, but is silent about what criteria should guide the judge's discretion in determining whether it is in the best interest of the child to permit such name change.
We are concerned at the outset lest a valuable parental right be terminated in a cavalier and careless manner. We do not believe that the drafters of Code, 48-5-1 (1969) contemplated petitions to change the names of children when there were living, interested fathers, although it does not preclude such petitions. We hold that the statute permits such petitions; however, under our general powers over procedure in courts of equity we hold that before a court can proceed to consider a petition for a change of name when there is a living father, actual notice must be given to the father if his whereabouts are known or with reasonable diligence could be ascertained.
Jurisdictions which have considered the question of whether the name of a child with a living father can ever be changed are in conflict with regard to its proper resolution. 3 We choose to follow the line of cases which hold that where the best interest of the child will be served by a change of name, such change may be granted. However, we make a strong distinction between situations where the father is exercising in any way his parental rights, or exercised such rights before he died, and situations where a father, living or dead, has abandoned all parental rights and responsibilities. In the former situation of active parents, the evidence must be far stronger with regard to benefits to the child, to justify a name change.
A father's interest in having his children bear his name is a valuable and protectable interest, although it is not a property right nor such an interest as cannot be taken away from the parent, if the best interest of the child will be served. Re Application of Seif, 40 Misc.2d 596, 243 N.Y.S.2d 172 (1963); Worms v. Worms, 252 Cal.App.2d 130, 60 Cal.Rptr. 88 (1967); and Eschrich v. Williamson, 475 S.W.2d 380 (Tex.Civ.App.1972). The law imposes upon a male parent an obligation to support his children while both morality and social convention demand that a father concern himself with the welfare of his children even if he is divorced from the children's mother and does not have custody of the children. Long-standing social convention has made the surname of a child the same as that of the father. See D. L. Fuller " Domestic Relations The Right of a Married Woman to Retain Her Maiden Name,"79 W.Va.L.Rev. 108 (1977). There are many practical considerations which even today militate in favor of this tradition. For example, a surname common to both parent and child makes it easier to demonstrate a legal relationship for the purpose of qualifying for benefits with the Social Security Administration upon the death of the father, as an heir in the event of intestate succession, or as the beneficiary of certain types of group insurance policies such as "G.I. Insurance" where the beneficiaries are established by law unless specifically changed by the insured.
In addition, in areas where families live in a given county for successive generations, a family name may be a substantial financial asset. A well-regarded and trusted member of a community may pass on to his children a certain presumption with regard to honor, integrity and fair dealing based upon the conduct of the parents. Regardless of the relationship between the parents, this can be a valuable asset to the children. It may give the children a substantial edge in life when they seek credit, employment, or admission to tightly controlled union, trade, or professional groups. Of course, all of these benefits could theoretically pass through the female line as well as the male line, but it is not customary. People expect children to bear the surname of their fathers, and as the circuit judge in one of the cases before us so ably pointed out, a child's bearing a woman's maiden name does give fair indication that the child is illegitimate. This may not be the way things ought to be; however, at this stage of our development, it is the way things are. Our analysis is descriptive, not normative; but the law must work with reality, not fancy or ideology. The weight of authority appears to be that absent extreme circumstances a father who exercises his parental rights has a protectable interest in his children bearing his surname and this interest is one quid pro quo of his reciprocal obligation of support and maintenance. In this regard we follow the reasoning of Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758 (1956).
Accordingly we hold that where a father is supporting his child, takes an interest in the child's welfare, and is in any way performing the parental responsibility which both the...
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