As an experienced New Jersey divorce attorney, I have had this question posed to me on many occasions. While my answer has always been the same a recent New Jersey Supreme Court case provided even more clarity. Let’s explore.
Often, I find the best way to explain the law to my clients is by way of example. Today, we shall use a case that went all the way to the that, as a New Jersey family lawyer, I am quite familiar with.
Mom and dad were divorced. In the New Jersey divorce settlement both parents were to enjoy joint legal custody of their child. Mom was named as the parent of primary residence (commonly known as residential or physical custody) and the dad was the parent of alternate residence.
A few months after the divorce, dad learned that mom had unilaterally changed the child’s last name from “Emma” to “Evans-Emma.” Dad, dismayed that mom would do such a thing without even consulting with him first, filed a motion with the Superior Court of New Jersey to prevent mom from using Evans-Emma. Mom filed a cross-motion requesting seeking to legally have the child’s name changed because she was the parent of primary residence. The court agreed with mom and dad immediately appealed the decision.
New Jersey’s Appellate Court focused more on the fact that the parties had agreed to joint legal custody of the child. As well as agreeing to he child’s name at birth. Therefore, mom is legally required to speak with dad regarding all major decisions regarding the child. The appeals court agreed that changing a child’s name is a significant issue and that mom had to, at the least, try to see if dad would ok with the change.
The appeals court reversed the decision. The appellate division said that the trial court should have focused on the “best interest of the child” rather than the fact that mom has residential custody. Mom then took the case to the New Jersey Supreme Court. The Supreme Court agreed with the appeals court and affirmed that the best interest of the child is always first and foremost and comes before the wishes of either parent.
When determining if mom’s desire to change the child’s name, a number of factors are to be taken into consideration. These include, but are not limited to, how long the child has had their “original” name, will the child suffer any emotional damage due to the change, and the child’s preference (but only if the are old enough). The one factor that hurt mom in this case was her motivation for changing the child’s name as it had more to do with “her best interests” as opposed to the child’s.
As I am sure you have seen, the Court concentrated solely on what is best for the child. As a New Jersey divorce lawyer, I am proud to say that my focus is always exactly the same. As we say around my office, “children first!” Thank you.