In a recent decision by the Appeals Court of Massachusetts, Gomes v. Candido, the court clarified the standard that is used when two parents disagree about their child’s surname.
In the trial court, the parents, who were unmarried but in a relationship when the twin children were born, had originally given the twins their mother’s surname. Indeed, the father had signed their birth certificate with the mother’s surname.
However, when the children turned three, the parents – who were no longer together but still maintained an amicable co-parenting relationship – disagreed about whether the children should have their surnames changed to that of the father. Eventually, they filed name change petitions in court.
When a judge considers a petition to change the name of a child, the focus is on the best interests of the child. The person filing the petition bears the burden of showing that the name change is in the child’s best interest.
The judge should consider the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent and other siblings; the length of time the child has utilized a given name; the age of the child as it may relate to his or her identification with the surname; and the difficulties and embarrassment that the child may experience from bearing the present or proposed surname. The allocation of custodial responsibility should also be considered.
What should not be considered is neither the father’s interest in having the child bear his surname nor the mother’s interest in having the child bear her surname, as a father has no more right for a child to bear his surname than does a mother.
In this case, the judge allowed the twins’ surnames to be changed, citing several factors including the fact that the father had been active in parenting them, that the children had used the name for only three years, and that the children had not yet entered formal schooling such that they identified with the name, among other things.
The Appeals Court disagreed, based mostly on their opinion that the judge had misapplied the standards. In their view, the judge appeared to analyze the factors based on whether the change would cause the children harm. This, in effect, created a presumption that the name should be changed unless harm could be shown. Instead, the inquiry should rest on the best interests of the children. The court then went through the judge’s reasoning on each of the different factors and explained why the judge’s interpretation of each of the factors was flawed.
Accordingly, the Appeals Court reversed the decision and provided that the children should still bear their mother’s name. Through this decision, the Appeals Court clarified the law in important respects, mostly by cautioning judges (and practitioners) to avoid approaching these inquiries from a ‘harm perspective’ and instead focusing solely on the best interests of the child.