Instant Name Change Petition
As set forth in Degerberg v. McCormick, et al., Del. Ch. 187 A.2d 436 (1963), the following law applies:
The right of one parent, against the objection of the other, to change the surname of a child has been the subject of frequent judicial consideration.
The great majority of cases presenting the problem have arisen under change of name statutes, or as incidental to divorce proceedings. In a few cases the natural father has sought relief where the divorced mother has registered children in school under the surname of a stepfather.
The decisions are annotated in 53 A.L.R.2d 914. As the annotator there observes, the courts have generally considered the welfare of the child as the controlling consideration regardless of the manner in which the problem may arise. So, in the present case, the question to be considered is the best of the child.
In determining whether or not it is in the child's best interest to permit a change in his surname certain factors have been regarded by the courts as of prime importance.
First of all, recognition is accorded to the usual custom of succession to the paternal surname, and, it is said, this succession is a matter in which the father, as well as the child, has an interest which is entitled to protection. In re Epstein, 121 Misc. 151, 200 N.Y.S. 897; In re Larson, 81 Cal. App.2d 258, 183 P.2d 688; Kay v. Kay, Ohio Com., Pl., 51 Ohio Op. 434, 112 N.E.2d 562.
Secondly, the interest manifested by the father in the welfare of the child as evidenced by support, visitation and promptness of complaint as to the attempted change of name. Kay v. Kay, supra.
Thirdly, the effect of a change of surname on the relationship between the father and his child. Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758, 53 A.L.R.2d 908; Rounick's Petition, 47 Pa. Dist. & Co. 71; Kay v. Kay, supra.
Authority, both judicial and psychiatric, recognizes that a change of surname of a child of divorced parents may contribute to estrangement of the child from his father. So, in Mark v. Kahn, supra, the court said:
"The bond between a father and his children in circumstances like the present is tenuous at best and if their name is changed that bond may be weakened if not destroyed." And, in In re Epstein, supra, it is said that the court should not "foster any unnatural barrier between the father and son." to the same effect, see Application of Wittlin, City Ct., 61 N.Y.S.2d 726; Rounick's Petition, supra; Kay v. Kay, supra. the views expressed in these cases find support in the testimony of psychiatrists adduced in this case.
In a recent decision by this Court, the following factors were considered relevant as to a determination of whether the best interests of a petitioner was served by the granting of the proposed name change. See, In re Change of Name of Evans to Brown, Del. CCP, C.A. No. 1998-10-147, Welch, J. (March 11, 1999).
The factors the Court considered in determining as to whether "the best interests of the child" would be served by granting the proposed name change were as follows:
A parent's failure to financially support the child;
A parent's failure to maintain contact with the child;
The length of time that a surname has been used for or by the child;
Misconduct by one of the child's parents;
Whether the surname is different from the surname of the child's custodial parent;
The child's reasonable preference for a surname;
The effect of the change of the child's surname on the preservation and development of the child's relationship with each parent;
The degree of community respect associated with the child's present surname and proposed surname;
The difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed name;
The identification of the child as a part of the family unit.
The law as it applies in the instant case is set forth in Chapter 59, Title 10 of the Delaware Code as well as CCP Civ. R. 81.
The legal standard is the "best interest of the child" standard in contested change of name petitions involving minors. 6 See, In re Change of Name of Walter to Coffin, Del. CCP C.A. No. 1998-06-222, Fraczkowski, J. (September 30, 1998), In re Change of Name of Evans to Brown, Del. CCP C.A. No. 1998-10-147, Welch, J. (March 11, 1999).
ClXy what constitutes the "best interests of the child" involves a factual analysis involving the relationship and family structure of a minor. See, In re Change of Name of James Roy Runyon, Jr., to James Roy McGarrity, Del. CCP C.A. No. 1999-06-185, Smalls, C.J. (August 13, 1999).
Sec. 5901. Petition for change of name.
(a) Any person who desires to change his or her name, shall present a petition, duly verified, to the Court of Common Pleas sitting in the county in which the person resides. the petition shall set forth such person's name and the name he or she desires to assume.
Sec. 5902. Requirements for minor's petitions.
If the name sought to be changed under this chapter is that of a minor, the petition shall be signed by at least one of the minor's parents, if there is a parent living, or if both parents are dead, by the legal guardian of such minor. When the minor is over the age of 14, the petition shall also be signed by the minor.
Sec. 5903. Publication of petition prior to filing.
No petition for change of name under this chapter shall be granted unless it affirmatively appears that the petition has been published in a newspaper published in the county in which the proceedings is had, at least once a week for 3 weeks before the petition is filed.
Sec. 5904. Determination by Court.
Upon presentation of a petition for change of name under this chapter, and it appearing that the requirements of this chapter have been fully complied with, and there appearing no reason for not granting the petition, the prayer of the petition may be granted
Sec. 5905. Costs.
The costs of any proceeding under this chapter shall be paid by the petitioner.
Rule 81. Petitions for change of name.
(a) a petition which seeks a change of name for a minor shall be signed by at least one of the minor's parents, if there is a parent living, or if both parents are dead, by the legal guardian of such minor. When the minor is over the age of fourteen, the petition shall also be signed by the minor.
(c) If the petition is signed by only one parent, it shall be served, before presentation, upon the parent who did not join in the petition. If personal service cannot be made, substituted service shall be made as the Court directs.