Yessner, Application of

• Decision Date: 07 October 1969
• Citation: 61 Misc.2d 174,304 N.Y.S.2d 901
• Parties: Application of Anita YESSNER, both individually and as the parent and guardian of Christopher Yessner, an infant, for leave to assume the names, Anita Mitnick and Robert Mitnick.
• Court: New York City Court

Page 901

304 N.Y.S.2d 901

61 Misc.2d 174

Application of Anita YESSNER, both individually and as the

parent and guardian of Christopher Yessner, an

infant, for leave to assume the names,

Anita Mitnick and Robert Mitnick.

Civil Court of the City of New York, Kings County, Special Term, Part I.

Oct. 7, 1969.

Louis A. Breslerman, Brooklyn, for petitioner.

NOAH GOLDSTEN, Judge.

NOAH GOLDSTEIN, Judge.

Petitioner, Anita Yessner, makes this application pursuant to Section 60 of the Civil Rights Law, on notice to her former husband, father of the infant, for leave to assume her maiden name, to wit: Anita Mitnick and for leave to change her infant son's name to Robert Mitnick.

While petitioner's former husband does not oppose her application to assume her maiden name, he does, however, oppose the application to change the infant's name on the ground that there is no need for such change and requests that the court hold the matter in abeyance pending his release from Elmira Penitentiary.

The marriage between the petitioner and the infant's father ended in a divorce by a decree in her favor in which she was awarded absolute custody of the infant without any visitation rights to the father.

The petitioner testified in support of this application at a hearing held before the court. From the evidence, it appears that the father is now confined to Elmira Penitentiary to which he was sentenced when convicted of the crime of manslaughter. On December 9, 1964, he killed the infant's material grandfather (petitioner's father), by chocking him to death. To date the father has manifested no particular interest in the infant or in his welfare and the infant, now five years of age, has no knowledge of his father.

The petitioner urges that it would be in the infant's best interest to relieve him of any connection with the tragic event by permitting him to change his name. To continue to call the infant his father's name needlessly perpetuates an episode which is best forgotten. Better, says the petitioner, to change the infant's name and to blot out the memory of his father's crime than to retain his father's name and to live with its memory.

While the court recognizes that to deprive the son of his father's surname is a serious and far-reaching action (Matter of Pollack, 2 A.D.2d 756, 153 N.Y.S.2d 282), and that the father has a natural right to have his son bear his name (Matter of Baldini, 17 Misc.2d 195, 183 N.Y.S.2d 416) and that the court should not endeavor to interfere with the usual custom of succession of paternal surname nor foster any unnatural barrier between father and son (Matter of Epstein, 121 Misc. 151, 152, 200 N.Y.S. 897, 898; Matter of Cohn, 181 Misc. 1021, 50 N.Y.S.2d 278), the court also recognizes that under certain circumstances it is in the best interest of the child to permit him to change his name (Application of Fein, 51 Misc.2d 1012, 274 N.Y.S.2d 547).

The request to change the infant's name should be approved or disapproved solely on the basis of the infant's best interest. (Matter of Simon, 1 Misc.2d 177, 148 N.Y.S.2d 14; Matter of Wittlin, City Ct., 61 N.Y.S.2d 726). In granting the infant's request for a change of name, the...