A recent case involving the name change of a child highlighted the relevance change of name cases can have on custody litigation. The case (In re: Change of Name of W.E.K., 12-03,079) arose out of Lycoming County in which the natural Father sought to have his child's last name changed from the Mother's married last name to his last name. The facts of this case are unusual to the extent that Mother, Father and Step-Father were all aware of the other's existence at the time of conception. Notably, all three are Army veterans and served overseas in Afghanistan. Mother was having relationships with both Father and Step-Father at the time of conception and, despite the knowledge that Father was most likely the biological Father of the child, named, Step-Father as the "birth father" on the Birth Certificate.
Pennsylvania's name change statute is found at 54 Pa. CSA §702 and the Pennsylvania Supreme Court has held that a Court should exercise discretion when acting on a name change petition and use its good sense, common decency and (consider the) fairness to all concerned and to the public. Petition of Falucci, 50 A.2d 200, 202 (Pa. 1947). Child name changes are more stringently considered than adult name changes and it is the petitioning parties' burden to establish that a name change is in the child's best interest. In re: Grimes, 609 A2.d 158, 161 (Pa. 1991).
The child was born on August 25, 2011 and Father filed a Custody Complaint on September 7, 2011. Subsequent biological testing confirmed that Father was the child's biological Father and the court also found that both Step-Father and Mother were aware prior to their marriage that the unborn child was most likely Father's biological child.
Difficulties with the parties' Agreed Custody Order ensured and Father had approximately an eight (8) hour trip from his home in Maryland to Mother's home in Williamsport, Pennsylvania. Once Father was no longer being deployed, he petitioned to modify the original 2012 Custody Order to allow him to have weekend overnights with the child at his home in Maryland.
The Name Change Petition originated from Father's desire to strengthen his bond with the child and alleviate any confusion the child might have in the future as to is his biological father. Exacerbating the situation was Mother's testimony at the name change hearing that she does not refer to Father as "Dad" or "Daddy" or "Father" to the child. Instead, she refers to the child's Step-Father as "Father" and that "Father" is a stranger to the child. Other testimony revealed that the Mother was less than forthcoming to Father's status as biological father and his custodial rights, particularly, to listing him as a contact for the child's physician, rather than a parent.
Among those reasons cited by Father for the name change include: that he is legally responsible for the child; that utilizing his surname will clear up the child's confusion as to the identity of his Father; that it will increase the bond between Father and child; and that Father is concerned about Mother's alienation of him from the child. Based upon the testimony of the parties, the court share within his concern that Mother was actively alienating Father from his son.
Mother's argument was that it was important for her to share the same surname as her child and that any interference between the relationship between Father and child has no bearing on whether or not the child's surname should be changed. Applying the statute and factors found in the Grimes case, the Court determined that it was in the child's best interest to have Father's surname. The court found that the only applicable factor that needed to be considered was the natural bond between Father and the child. Due to Father's efforts to obtain custody and clear motivation in continuing to foster a relationship with this child, the court viewed those facts as having significant weight to consider the child's name change. The court found that a bond existed between Father and child and that such a bond will continue to increase as Father receives additional custodial time.
The Grimes case identifies two additional factors for considering a name change: that there is a social stigma afforded to a particular name within the community, and; that the child is of sufficient age to intellectually and rationally understand the significance of the name change. Due to the fact the child was sixteen (16) months old at the time of the Petition, the court did not consider such factors to be relevant to this case, but they nevertheless did further analysis of those factors to help make this opinion a more complete analysis of the issue.
The Court is conscious of this being a battle within the larger war of custody. Mother's motivation for utilizing her husband's surname for the child appears to be rooted in her attempts to distance she and the child from Father and to eventually alienate him completely from the child's life. The court references testimony from the parties' paternity litigation to identify that Mother has been disingenuous with her reasoning behind her desire to keep the child's surname. In what will no doubt be referenced in future custody litigation, the Court found any confusion the child may experience would be a product of Mother's efforts to alienate the child from his father. Mother's efforts to alienate the child from the Father justify granting the name change as being in the child's best interests.
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