Shipley, Application of

• Decision Date: 14 September 1960
• Citation: 26 Misc.2d 204,205 N.Y.S.2d 581
• Parties: Application of Claire SHIPLEY, mother and natural guardian on behalf of Gerald Henry, Matthew Henry, Claire Henry and Theodore Henry infants, and all of said Infants By their mother, joining in this Petition, asking for leave to change their names.
• Court: New York Supreme Court

Page 581

205 N.Y.S.2d 581

26 Misc.2d 204

Application of Claire SHIPLEY, mother and natural guardian

on behalf of Gerald Henry, Matthew Henry, Claire Henry and

Theodore Henry infants, and all of said Infants By their

mother, joining in this Petition, asking for leave to change

their names.

Supreme Court, Special Term, Nassau County, Part I.

Sept. 14, 1960.

Nathaniel Taylor, Mineola, for petitioners.

Frank J. Faruolo, Jr., Brooklyn, for respondent.

BERNARD S. MEYER, Justice.

This application, made by four infants by their mother and on notice to their father, seeks permission, pursuant to Civil Rights Law, Article 6, to change their surname to that of their stepfather, and in the case of the oldest infant, who is named for his father, but has used his middle rather than his first name, also to drop his first name and hereafter to use his middle name as his first name and his mother's maiden name as his middle name. The parents of the infants were married in 1941, separated in 1956 and were divorced in 1958 by a Nevada decree made in a proceeding brought by the mother and in which the father appeared. By order to show cause and petition, the father seeks an order requiring the mother to cease and desist causing the children to be known by any other surname than his, to cause school and other records to be rectified, and to refrain from changing the surname of any of the children except by order of court. While there was no matrimonial action in New York and there is no provision in Civil Rights Law, Article 6, authorizing consideration of such a petition in a change of name proceeding, it appears that proceeding by petition and order is the correct way to bring on the issues raised by the father, Finlay v. Finlay, 240 N.Y. 429, 433-434, 148 N.E. 624, 626, 40 A.L.R. 937; People ex rel. Sisson v. Sisson, 246 App.Div. 151, 155, 285 N.Y.S. 41, 44, reversed on other grounds 271 N.Y. 285, 2 N.E.2d 660; Application of Ebenstein, Sup., 85 N.Y.S.2d 261, n. o. r.; see Galanter v. Galanter, Sup., 133 N.Y.S.2d 266, n. o. r.; People ex rel. Way v. Williams, Sup., 101 N.Y.S.2d 383, n. o. r.; Application of Bopp, Sup., 58 N.Y.S.2d 190, 195, n. o. r., and that no reason exists why the two petitions should not be considered together. A hearing has, therefore, been held on both at which both sides were given full opportunity to adduce testimony. For the reasons hereafter stated, both the petition for change of name and the petition for a restraining order are denied. In the father's answering papers on the Article 6 application, he also seeks an order restraining the mother and stepfather from interfering with his visitation rights as fixed in a separation agreement. No separate motion or cross-motion for that relief has been made nor was such relief requested in the father's petition. The question is, therefore, not properly before the court and will not be ruled upon.

Under Civil Rights Law, § 63, a petition for the change of an infant's name should be granted if (1) there is no reasonable objection to the proposed change and (2) the interests of the infant will be substantially promoted by the change. The father objects to the change because it will adversely affect his relationship with the children, will create an 'impossible climate' for visitation, teaches the children deceit since they will be using a name not theirs in order to cover possible embarrassment, and because use of the stepfather's name would be personally obnoxious to him. The last three reasons require little consideration; the occasions for use of a surname during visitation are so few and the practice of changing surnames so long standing and well recognized, particularly where children of a broken marriage are living with their mother who has remarried, that neither the second nor the third can be considered reasonable. Likewise, the fourth, which is purely personal is no sufficient basis to deny the change if otherwise warranted.

Possible adverse effect on the relationship between a father and his children is, however, a valid ground of objection, where the father has evidenced sustained interest in the children by continuing support payments and visitation and does not unreasonably delay in objecting to the change, Application of Wittlin, City Ct., 61 N.Y.S.2d 726, n. o. r.; Matter of Epstein, 121 Misc. 151, 200 N.Y.S. 897; Nitzberg v. Board of Education, 200 Misc. 748, 104 N.Y.S.2d 421; Matter of Otis (Weiss), 204 Misc. 1073, 126 N.Y.S.2d 651; Matter of Simon, 1 Misc.2d 177, 148 N.Y.S.2d 14; In re Schultz (Ortenberg), N.Y.L.J. 11/14/57, p. 7, col. 2; see Matter of Pollack (Zipper), 2 A.D.2d 756, 153 N.Y.S.2d 282. The mother does not deny that support at the rate of $250 per month, as required by the separation agreement has been regularly paid, but says that, by his conduct prior to divorce and during visitation periods since, the father has himself alienated the children. She argues further that the relationship of the children to their stepfather is close, that he participates in school and other activities with them, that they voluntarily called him 'Dad' and began using his surname, and have in the last two years shown marked improvement from the upset children (as evidenced by stammering, or bedwetting or nervousness) they were previously, that the use of the father's surname is a constant reminder of unpleasantness, that the status achieved by the children themselves in their school, church and other relationships should be continued, and that the emotionally wellbeing and security of the children will be promoted by the change to the stepfather's surname, thus creating a cohesive family unit.

The conduct of the father alluded to is alcoholism and the constant involvement of the children in the emotional difficulties of the father. The court is satisfied from the evidence that the father's drinking was a major cause of the family breakup, that the attitudes and aptitudes of the children have been substantially improved by their new environment, and that they have a warm relationship with their stepfather and a strained relationship with their natural father. Since the warm relationship and improved environment will continue whether or not the petition is granted, it does not necessarily follow, however, that the children's interest will be substantially promoted by the proposed change.

The court cannot say on the record before it that the natural father has not exhibited a desire to preserve the parental relationship. Nor can it ignore the effect on that relationship of the antipathy between father and stepfather, the greater material advantages which the stepfather with his vastly larger income freely gives, and the disadvantage at which the natural father is placed by his separation from and sporadic contact with the children. Much of the father's disadvantage is, it is evident from the testimony, and particularly from that of the children, of his own doing. The question, however, is not which of the adults is right or wrong, but what course will best serve the interests of the children. Since the granting of the petition in the circumstances of the instant case will, in the court's opinion, contribute to the further estangement of the children from their natural father and such estrangement is, generally, not in the best interest of children; since the court is not convinced that the present estrangement is so completely the fault of the father that he should be held to have forfeited his right to interpose objection nor that the present estrangement is beyond conciliation given an intelligent and less emotional approach on the part of the adults, and particularly on the part of the father; since the children involved in this proceeding are of sufficient age and understanding to continue the use of the stepfather's surname through exercise of the common law right hereinafter referred to to change their names and, the court finds from their testimony, are doing so of their own volition; and since a name change judicially effected apparently cannot thereafter be changed except by like decree (Civil Rights Law, § 64; Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947, 26 L.R.A.,N.S., 1167; Klein v. Steel, 186 Misc. 98, 60 N.Y.S.2d 323, affirmed 270 App.Div. 806, 60 N.Y.S.2d 277; Application of Biegaj, City Ct., 25 N.Y.S.2d 85, n. o. r.), the court concludes that the interests of the children will not be substantially promoted by granting the requested order, see In re Rounick, 47 Pa.Dist. & Co.R. 71.

The Civil Rights Law provisions establishing judicial procedure for change of name are in addition to, and not in substitution for, the common law methods of change, Smith v. United States Casualty Co., supra. Surnames are said not to have been used in England until the Norman conquest, Fox-Davis, A Treatise on the Law Concerning Names and Change of Name (1906), 14; Dudgeon, A Short Introduction to the Origin of Surnames (1890), 2, and to have come into general use only toward the end of the fourteenth century, after Henry VIII established regulations governing the recording of births, marriages and deaths, Petition of Snook, 2 Hilt. 566, 571; In re Romm, 77 Pa.Dist. & Co.R. 481. About that time they became hereditary, Bardsley, English Surnames (1875), 3, but only by custom, Kay v. Bell, 95 Ohio App. 520, 121 N.E.2d 206; Encyclopedia Brittanica (1953), 64, and the custom has never ripened into a rule of law, Petition of Snook, supra, at page 572. The change could be accomplished by an Act of Parliament or by the King's license, Petition of Snook, supra, by deed-poll usually accompanied by an advertisement, Phillimore, The Law and Practice of Change of Name (1905), xxxii; 23 Halsbury's Laws of England (2d Ed.), 560, or 'as in the first instance they were arbitrarily assumed, so they could be changed at pleasure,' Halsbury, supra, at p. 556, and without legal formality, Smith v. United States Casualty Co., supra; ...