Rio v. Rio

Decision Date21 May 1986
Citation504 N.Y.S.2d 959,132 Misc.2d 316
PartiesRichard RIO, Plaintiff, v. Joanne RIO, Defendant.
CourtNew York Supreme Court


Plaintiff moves for an order modifying a Certificate of Live Birth issued for the infant issue of the marriage which was filed with the New York State Department of Health on July 23, 1985. On said certificate, the child's name was listed as Krystle DeSalvio-Rio, DeSalvio being the mother's maiden name and Rio being the father's surname. Plaintiff seeks an order amending said birth certificate to eliminate the mother's maiden name therefrom, and directing defendant to refrain from using any surname other than the father's for this child on any school, religious or other documents.

The child in question, Krystle, was born on July 18, 1985, at which time plaintiff was not residing at the marital residence. In fact, he contends that defendant kept the actual event of the birth of the daughter a secret from him. Also, he contends that she neither consulted him, nor attempted to gain his consent when she gave the child the hyphenated surname. Finally, he contends that it is a time honored right that a new-born child born in wedlock bear the surname of the father. Defendant, on the other hand, in addition to asserting her rights to equal protection and equal parenting, contends that she never, herself, adopted her husband's surname upon marrying him, and that plaintiff is not supporting the child. It further appears that plaintiff was present at the time of the child's birth.

For the reasons set forth below, the court denies the instant motion in all respects.

Most American children born in wedlock are given their father's surname (Note, Like Father, Like Child: The Rights of Parents in their Children's Surnames, 70 Va.L.Rev. 1303, 1304 (1984) (hereinafter referred to as "Note, Like Father, Like Child "). However, at common law, no one has a property right to a personal name such that one can keep another from using it (G.S. Arnold, Personal Names, 15 Yale L.J. 227-228 (1905-06). Consistent with the right to change one's name is the right not to change it at marriage as many women traditionally have done (See, e.g., Bysiewicz & MacDonnell, Married Women's Surnames, 5 Conn.L.Rev. 598 (1973); Daum, The Right of Married Women to Assert Their Own Surnames, 8 U.Mich.J.L.Ref. 63 (1974); Karst, "Discrimination So Trivial ": A Note On the Law and the Symbolism of Women's Dependency, 35 Ohio St.L.J. 546 (1974).

Most courts recognize that the father has no common-law right to determine his child's surname and find support for the paternal name presumption in natural law. In name change cases, for example, courts use the idea of natural law in two ways. Some courts speak of the father's "primary" or "fundamental" right "The father ... has a natural right to have his son bear his name" (In re Baldini, 17 Misc.2d 195, 183 N.Y.S.2d 416 (City Ct., Bronx Co., 1959); See, Worms v. Worms, 252 Cal.App.2d 130, 60 Cal.Rptr. 88 (1967); West v. Wright, 263 Md. 297, 283 A.2d 401 (1971); DeVorkin v. Foster, 66 N.Y.S.2d 54 (Sup.Ct., Kings Co., 1946); In re Yessner, 61 Misc.2d 174, 304 N.Y.S.2d 901 (Civ.Ct., Kings Co., 1969); Young v. Board of Education, 114 N.Y.S.2d 693 (Sup.Ct., Kings Co., 1952) ("fundamental right"); Schoenberg v. Schoenberg, 57 N.Y.S.2d 283 (Sup.Ct., Kings Co., 1945), aff'd 269 A.D.2d 1048, 59 N.Y.S.2d 280 (2nd Dep't 1945), aff'd 296 N.Y. 583, 68 N.E.2d 874 (1946) ("primary right"). Other courts refer to the father's "time-honored right" (See, e.g., In re Wachsberger, N.Y.L.J., June 28, 1982, p. 16, col. 2 (Sup.Ct., Nassau Co., Burke, J.) and use the concept of natural law to convey the understanding that any practice universal among human societies must be innate, a "law of nature". Commentators contend, however, that the confidence of state courts that the paternal name is a right confirmed by common practices is misplaced (Note, Like Father, Like Child, supra, supra, at 1321; MacDougall, The Rights of Women to Name their Children, 3 Law and Inequality 91 (1985); Note, Parent's Selection of Children's Surnames, 51 Geo.Wash. L.Rev. 583 (1983).

Examination into the naming practices of Western Civilization reveals that names ordinarily express kinship, but not necessarily paternity. Matronymics, names derived from the maternal line, have been employed in several Western cultures, including modern Spain (See, Secretary of the Commonwealth v. City Clerk, 373 Mass. 178, 180, 366 N.E.2d 717, 720 (1977) and medieval England (P. Reaney, A Dictionary of British Surnames, xliii-xlv (1958). Medieval Arabs and Jews also used matronymics (See, Goitein, Nicknames as Family Names, 90 J. Am. Oriental Soc'y 517, 522-23 (1970). The Chinese characters for "to have a surname" is composed of the characters for "woman" and "to be born" (J. Defrancis, Character Text for Beginning Chinese 5, 11, 99 (1964). In England, at least as late as the 14th century, both sons and daughters adopted their mother's surnames, often upon succeeding to their mother's estate or in the hope of doing so (P. Reaney, The Origin of English Surnames 84 (1968). Men also adopted their wives' surnames if the couple inherited property from the woman's family (G. Homans, English Villagers of the Thirteenth Century 187 (1941). The children of such couples, presumably, also took their mother's surnames (Note, Like Father, Like Child, supra, at 1322). Concise and fascinating histories of the practices in naming children are to be found, in addition to the above-cited works and law review articles, in two early New York decisions, Petition of Snook, 2 Hilt. 566 (1859) and Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947 (1910).

Referring to what is perceived to be the Anglo-American custom, some courts eschew natural law and simply rely on the conservative philosophy that a custom should not be discontinued save in extraordinary circumstances (See, e.g., Carroll v. Johnson, 263 Ark. 280, 286, 565 S.W.2d 10, 14 (1978); Montandon v. Montandon, 242 Cal.App.2d 886, 891, 52 Cal.Rptr. 43, 46 (1966); West v. Wright, 263 Md. 297, 300, 283 A.2d 401, 402 (1971). It has been held that courts may take judicial notice of well-known facts concerning the habits and activities of human beings (Richardson on Evidence (10th ed.1973), § 42). Among these well-known facts is the practically universal custom of giving a child the father's surname. Equally well-known is the fact that a surname provides a means of identifying the child with the father's family (Bennett v. Northcutt, 544 S.W.2d 703, 707 (Tex.Civ.App.1976).

In New York, it has been held that although a father has a recognized interest in having his child bear his surname, neither parent has a superior right to determine the surname of the child, and the question is always whether the best interests of the child will be served by a proposed change (Cohan v. Cunningham, 104 A.D.2d 716, 480 N.Y.S.2d 656 (4th Dep't 1984). 1 Depriving a child of his or her father's surname is normally a far-reaching action, and applications for a change of an infant's surname are usually granted only where the natural father is guilty of misconduct, abandonment or lack of support (Matter of Goldstein, 104 A.D.2d 616, 479 N.Y.S.2d 385 (2nd Dep't 1984); Application of Petras, 123 Misc.2d 665, 475 N.Y.S.2d 198 (Civ.Ct., Queens Co., 1984); Matter of Determann, N.Y.L.J., Feb. 23, 1982, p. 13, col. 1 (Sup.Ct., Nassau Co., Balletta, J.). Here, however, the court is faced with a situation involving the naming of a child nearly at birth, and where the father has not totally been deprived of having his child bear his surname.

It appears that the parental surname custom has sought to serve four major purposes:

(1) Ease of inheritance;

(2) Governmental convenience;

(3) Genealogical and historical convenience; and

(4) Promotion of marriage and family life.

With regard to the issue of ease of inheritance, some contemporary American courts have declared that this reason continues to justify an exclusively paternal surname (In re Harris, 160 W.Va. 422, 236 S.E.2d 426, 429 (1977); see also, D.R.S. v. R.S.H., 412 N.E.2d 1257, 1263 (Ind.App.1980). In Harris, the West Virginia Supreme Court outlined the financial benefits accruing to children from their fathers: Social Security, G.I. benefits, insurance, real property and good will in a family business. The court conceded, "Of course, all of these benefits could theoretically pass through the female line as well as the male line, but it is not customary." (Harris, supra, at 419). A paternal surname presumption may have been accurate in the eighteenth and nineteenth centuries when married women could neither contract nor control their own wealth and no child could inherit from his mother. After the Married Women's Property Acts were enacted in the latter half of the nineteenth century, however, married women in America, like their fourteenth century English predecessors, were able to contract and to hold property. It is well known that many women now work outside the home and own significant property, and, consequently, an exclusively paternal naming system is no longer warranted on the theory of ease of inheritance.

With regard to the issue of governmental convenience, the United States Supreme Court has held that "any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands 'dissimilar treatment for men and women who are ... similarly situated,' and therefore involves the 'very kind of arbitrary legislative choice forbidden by the [Constitution] ...' " (Frontiero v. Richardson (411 U.S. 677, 690, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973), quoting ...

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