Recent oral arguments at the New Jersey Supreme Court focused on children’s last names after divorce, as reported by the Legal Intelligencer on March 15, 2013. According to the Intelligencer, lawyers debated whether a child should receive her mother’s last name if she lives primarily with the mother after divorce.

In the case, Emma v. Evans, the mother filed a motion to change the children’s names to her last name after she and the father divorced and the children lived primarily with her. The trial court granted her motion, relying on two Supreme Court cases that mandated a gender-neutral approach to last names post-divorce, instead of the
traditional method of keeping the father’s last name.

The Appellate Division, however, reversed, finding that the two Supreme Court cases, Gubernat v. Deremer and Ronan v. Adely, did not hold that the law presumptively would favor the last name of the parent who has primary custody after divorce. Such a holding would favor mother’s last names, since mothers comprise the majority of parents of primary residence.

During the arguments before the Supreme Court, the mother’s attorney argued that the trial court’s ruling should be reinstated in order to rid “thousands of years of gender discrimination.” She also said she did not think the incident of divorce settlements would decrease if parents of primary residence could motion to have the children’s names changed to theirs, since the issue can be negotiated and hyphenated last names are an option. One justice disagreed, saying a father would be less inclined to agree to the mother being the parent of primary residence.

The father’s attorney argued that the issue of changing a child’s last name is not simple, and therefore should not be subject to a simple rule. He elaborated that the issue should be discussed between the parents before they sign a property settlement agreement. If a motion to change a child’s last name is brought post-judgment, he argued, the court should presume that the child’s name remain the same and place a heavy burden on the moving party to explain why a change is necessary.

The case of Emma v. Evans raises an interesting issue, especially when more and more families are already deviating from the established pattern of assigning the father’s last name to their children. If you have any questions about divorce, custody, and the name change process, please feel free to contact the dedicated family law attorneys at Petrelli Previtera.