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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of a Change of Name for A.C.S., A Minor Child (11/28/2007) sp-6208
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| In the Matter of a Change of | ) Supreme Court No. S-12489 |
| Name for | ) |
| ) Superior Court No. 3AN-06-05674 CI | |
| A.C.S., | ) |
| ) O P I N I O N | |
| A Minor Child. | ) |
| ) No. 6208 - November 28, 2007 | |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: G.R. Eschbacher, Justin
Eschbacher, Anchorage, for Appellant Eric
Gieser. Michelle V. Minor, Law Offices of
Michelle V. Minor, P.C., Anchorage, for
Appellee Lisa Starling.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
MATTHEWS, Justice.
The question presented is whether the superior court
properly denied a father's petition to change the surname of his
preschool-age child to a hyphenated name containing both parents'
surnames. We conclude that the court erred. We do so primarily
because the court allocated to the father the burden of proving
that the change was in the best interests of the child. Since
this was an initial naming dispute, neither parent should have
had a burden of proof.
I. FACTS AND PROCEEDINGS
The son of Eric Gieser and Lisa Starling was born on
May 12, 2002. Gieser and Starling were not married. Before the
birth of the child Gieser sued Starling in superior court in what
became a child custody action.1 The complaint alleged that
Starling was pregnant with Gieser's child and had threatened to
leave the state of Alaska to deprive Gieser of contact with the
child and to deprive the state of Alaska of jurisdiction for
purposes of determining custody, visitation, and child support.
The complaint also alleged that Starling had "continually and
excessively badgered [Gieser] with telephone calls and threats to
deprive him of contact with the parties' minor child." The
complaint sought a declaration that Alaska had jurisdiction,
asked that Gieser's last name be added to the child's name, and
requested that custody, visitation, and child support be ordered
consistent with the best interests of the child. The complaint
also requested a permanent injunction limiting the contact
between the parties to "e-mail or fax except in the case of an
actual emergency involving the minor child."
As anticipated in the complaint, Starling left the
state of Alaska a few weeks before the birth of the child and
gave birth in the state of Washington. Starling named the baby
"Aidan Christian Kieran Starling." Some six weeks after the
child was born Gieser filed an amended complaint in the custody
action that sought primary physical and sole legal custody of the
child and requested that the child's name be changed to a
hyphenated surname that included the surname of both parents.
The parties litigated custody and visitation through 2005
culminating in a modified custody order issued by Superior Court
Judge Mark Rindner on December 5, 2005. Under the order Gieser
has sole legal custody of the child, while he and Starling share
physical custody on an equal basis. Gieser's request in the
custody action that the child's name be changed to include his
surname was denied on the ground that the request should be made
in a separate proceeding.
In January 2006 Gieser filed a petition to change
Aidan's name from "Aidan Christian Kieren Starling" to "Aidan
Christian Gieser-Starling." Starling opposed the petition. The
petition was also assigned to Judge Rindner. After a hearing,
Judge Rindner denied the petition, finding that Gieser had the
burden of proving that the proposed name change would be in the
best interest of the child and that he failed to carry this
burden. The court found in support of this conclusion that "the
parties still have a high level of conflict regarding the child"
and "that it would not serve the child's best interests to have a
hyphenated last name" because "it is likely that the parties'
conflict will continue and extend to which part of the hyphenated
last name should be used if the Court were to grant the father's
petition." Gieser appeals.
II. DISCUSSION
On appeal Gieser argues that the court erred in placing
the burden on him to show that the change was in the best
interest of the child, that the court relied on an impermissible
factor when it found that the proposed name would be the source
of continuing conflicts, that the court should have explicitly
addressed the factors pertaining to a best interests
determination regarding the change of a child's name referred to
in Acevedo v. Burley,2 and that the court erred in failing to
fully explore the benefits of a hyphenated surname.3
Alaska Civil Rule 84(e) governs the procedures for
changing the name of a minor child. The rule establishes that
the standard to be satisfied for changing a child's name is the
best interest of the child and implies that the burden of proving
that the proposed change is in the best interest of the child is
on the proponent of the change. The second paragraph of Civil
Rule 84(e) provides:
If the court receives an objection to
the proposed name change presented by a
parent . . . prior to or at the time of the
hearing on the proposed name change, the
court shall consider the objection and shall
only grant the name change if the court finds
the name change to be in the best interest of
the child.
Notwithstanding this implication, Gieser presents a
number of authorities that hold that in cases where the initial
naming of a child is in dispute neither party should have a
burden of proof; the standard remains the best interests of the
child, but neither party has a presumptive advantage.
One such case is Keegan v. Gudahl.4 There the parents
were married at the time of the birth of the child, though not at
conception, and the mother instituted divorce proceedings only
two months after the child was born.5 At the birth of the child
the mother gave the child her surname.6 During the divorce
proceedings the father contended that the child's name should be
changed to his surname.7 The trial judge agreed.8 On appeal the
Supreme Court of South Dakota reversed, holding that neither the
mother's choice at the time of birth nor the tradition of
children taking the surname of their father should be a source of
advantage to either parent. Instead, the trial court should
determine the child's surname based solely on best interest
considerations:
"[T]he mother does not have the absolute
right to name the child because of custody
due to birth." As a result, the mother
"should gain no advantage from her unilateral
act in naming the child." Likewise, the
custom of giving a child the father's surname
should not serve to give father an advantage.
Only the child's best interest should be
considered by the court on remand.[9]
Similarly, in Schroeder v. Broadfoot, the Court of
Special Appeals of Maryland ruled that neither parent should be
at a disadvantage in an initial naming dispute.10 The court also
noted that this approach had been adopted by a majority of
courts:
[T]he Court adopted a pure best interests
standard for "no initial surname" cases, by
which we mean the court decides the issue
without either party bearing a burden of
proof that would act as a legal tie-breaker,
i.e., a presumption, in the event the court
finds the evidence to be in equal balance.
The majority of courts in other states also
apply a pure best interests standard in
disputes between parents over their
children's initial names.[11]
In our view neither parent should automatically have a
superior right to determine a child's surname.12 It follows that
in initial naming disputes the relevant question should solely be
the best interests of the child, with no default position to fall
back on in cases of doubt.13
In our view, this is an initial naming dispute. Even
before Aidan was born the parties disagreed on what his surname
should be. Gieser raised the surname issue in the custody action
before the child was born, but the superior court ruled that this
question would have to be taken up in a separate proceeding.
When the custody litigation drew to a close, Gieser filed this
change of name proceeding. There was thus no acquiescence in
Starling's unilateral choice of the child's last name.14 It
follows that the court erred in imposing the burden of proof on
Gieser.
It is clear that placement of the burden of proof on
Gieser was an important part of the court's reasoning. The court
stated in announcing its decision:
But I haven't heard any good reasons for
- that it's in the child's best interest for
- the child was born with the name of
"Starling," and I haven't heard of any
reasons why not keeping the name of
"Starling" is not appropriate and why it's
better for the child to have a hyphenated
name. The suggestions have been made
entirely - seem to relate that Mr. Gieser
would like that to happen. And while I can
sympathize with his desire to have his child
have his name, just as I would sympathize
with Ms. Starling's name, that's not the
standard that I apply here. [A]nd so, given
that the child has had the name "Starling"
all his life, given that I do not believe the
burden has been met, and given the conflict
between the parents and the lack of
communication, which both parents, I think,
readily acknowledge, would, I think, only be
exacerbated and put the child in the middle
of a hyphenated name situation. That
hyphenated name would be used to do that.
I do not find that the burden of proof
has been [met] in this case and will deny the
petition for the name change. (Emphasis
added.)
A remand is therefore necessary for a best interest determination
unweighted by burden of proof considerations.
Gieser also argues that the trial court impermissibly
emphasized the fact that a hyphenated name would simply be a new
cause for conflict between the parties. He argues that this
finding simply rewards bad behavior and is not relevant in a
change of name proceeding.
We agree that the possibility that the parties might
have future disputes as to which part of a hyphenated name to use
should not have had a central role in the court's decision
making. Here, as in Acevedo v. Burley,15 the court could have
directed that the child's official surname be used in matters of
record while leaving private or personal uses to the discretion
of each parent or the child.16
Gieser also argues that the court erred in not
referring to factors relevant to the change of a child's name
that we quoted in Acevedo. In Acevedo we quoted language from
the Supreme Court of Illinois in the case of In re Marriage of
Presson,17 where the court described the circumstances relevant to
a change in a minor's surname:
To determine the best interest of the
child, the court should consider the express
wishes of the child and of both parents, the
stated reasons for the proposed change, the
child's age and maturity, the nature of the
family situation, the strength of the tie
between the child and each parent, any
misconduct toward or neglect of the child by
the parent opposing the change, and the name
by which the child has customarily been
called.[18]
We also noted the wishes of a young child need not be given
weight since the child "is not necessarily an able judge of what
his best interests are."19
Neither Acevedo nor In re Marriage of Presson was an
initial naming dispute. Factors in initial naming disputes may
be different in some respects. In particular, considering the
"stated reasons for the proposed change" would be inappropriate
since that assumes an established name. Further, "the name by
which the child has customarily been called" would ordinarily
have little weight since it is expected that initial naming
disputes will involve only very young children. Otherwise, the
Acevedo/Presson factors are relevant.
A more specific listing of factors in the context of an
initial naming dispute was offered by the South Dakota court in
Keegan v. Gudahl.20 The court stated that factors
for the court to consider include, but are
not limited to: (1) misconduct by one of the
parents; (2) failure to support the child;
(3) failure to maintain contact with the
child; (4) the length of time the surname has
been used; and (5) whether the surname is
different from that of the custodial parent.
The court may also consider whether a
particular name will contribute to the
estrangement of the child from a non-
custodial parent who wishes to foster and
preserve the parental relationship.[21]
Although the first three factors perhaps overemphasize
misconduct, we believe they are relevant and for the most part
are fairly encompassed within those quoted in Acevedo. A
commentator has offered a still more detailed listing of "child
centered, gender neutral factors" for consideration in naming
disputes:
1) the length of time that the child has used
his or her current name; 2) the name by which
the child has customarily been called; 3)
whether a name change will cause insecurity
or identity confusion; 4) the potential
impact of the requested name change on the
child's relationship with each parent; 5) the
motivations of the parties in seeking a name
change; 6) the identification of the child
with a particular family unit, giving proper
weight to step-parents, step-siblings and
half-siblings who comprise that unit; 7) any
embarrassment, discomfort, or inconvenience
that may result if the child's surname
differs from that of the custodial parent;
and 8) the degree of community respect
associated with the present and proposed
surnames.[22]
With the possible exception of the last factor, we believe this
listing is a sensible one. Insofar as any of the factors listed
by the above authorities are found to be relevant, they should be
referred to by the court in its decision on remand.
Finally, Gieser argues that the court too readily
dismissed the possibility of employing a hyphenated name without
fully considering its benefits. Gieser notes that a number of
courts have recognized the benefits of using a hyphenated surname
for a child whose parents live separately.23 He contends that a
hyphenated surname can foster a child's affiliation with both
parents, impart to a child a greater sense of security, and serve
to avoid confusion as the child participates in activities
outside the home.
The Supreme Court of Ohio endorsed the use of
hyphenated surnames in In re Willhite:
[The mother] is not attempting to give
her daughter a new identity by eliminating
the father's name. Rather, [the mother] is
seeking to have both parents' surnames
hyphenated and combined as the surname for
the daughter the two parties share. [The
mother] is not seeking to distance her ex-
husband from their daughter. Instead, she is
seeking to foster her daughter's affiliation
with both parents, who have different
surnames. See In re Change of Name of
Andrews, 235 Neb. at 1278, 454 N.W.2d at 493.
"A dual name would help the child identify
with both parents, a state of mind that child
psychologists say is essential to the child's
adjustment to divorce." Seng, supra, 70 Va.
L. Rev. at 1350, citing Cochran & Vitz, Child
Protective Divorce Laws: A Response to the
Effects of Paternal Separation on Children
(1983), 17 Fam. L. Q. 327, 333-334, 353.
Further, a combined surname gives the child a
greater sense of security. Id.
Equally important, with the name
addition, [the mother] seeks to avoid the
confusion so prevalent with having a mother
and child in the same household with two
different surnames. The addition of the
maternal surname may aid in avoiding
confusion and embarrassment at school, at the
doctor's office, at church, in sports or
other social activities, and within the
community. The child with a combined surname
does not have to explain why his or her last
name is different.
A combined surname is a solution that
recognizes each parent's legitimate claims
and threatens neither parent's rights. The
name merely represents the truth that both
parents created the child and that both
parents have responsibility for that child.
Seng, supra, 70 Va. L. Rev. at 1348.[24]
Although we are not ruling that these considerations
necessarily apply to the present case, we think that they are
worthy of serious consideration.
III. CONCLUSION
For the above reasons, the decision of the superior
court is REVERSED and this case is REMANDED for further
proceedings consistent with this opinion.
_______________________________
1 Docket No. 3AN-02-04168 Civil, filed January 23, 2002.
We take judicial notice of the pleadings filed in this case. See
Drake v. Wickwire, 795 P.2d 195, 197 n.1 (Alaska 1990) (holding
that court may take judicial notice of pleadings filed in another
case).
2 994 P.2d 389 (Alaska 1999).
3 These are questions of law that we review non-
deferentially applying our independent judgment and adopting the
rule of law that is most persuasive in light of precedent,
reason, and policy. See Burcina v. City of Ketchikan, 902 P.2d
817, 820 n.4 (Alaska 1995).
4 525 N.W.2d 695 (S.D. 1994).
5 Id. at 695-96.
6 Id. at 699.
7 Id. at 696.
8 Id.
9 Id. at 700 (quoting In re Quirk, 504 N.W.2d 879, 882
(Iowa 1993)) (citations omitted).
10 790 A.2d 773, 781 (Md. Spec. App. 2002).
11 Id. at 783-84. In Schroeder the Maryland court
considered an alternative approach taken by some other
jurisdictions in which the name preferred by the custodial parent
is presumptively regarded as in the child's best interests:
Some courts have adopted a mixed
standard, however, that combines a best
interests analysis with a presumption in
favor of the name preferred by the custodial
parent. The courts that have adopted such a
standard premise it on the well-established
principle that the child's custodial parent
is presumed to act in his or her best
interests in all respects, including in
giving the child a name.
Id. at 784. The Maryland court rejected this approach,
however, because it could have the effect of incorporating a
maternal preference "because, maternity being established by
nature, custody of an infant almost always is with his mother"
and could also "lead to custody races to the courthouse and to
parents refraining from agreeing upon custody, so as not to lose
an advantage [in naming the child]." Id.
12 Numerous jurisdictions take this view. In re Andrews,
454 N.W.2d 488, 491 (Neb. 1990) (citing cases in which courts
have held that neither parent has a superior right in naming a
child).
13 As noted, Civil Rule 84(e) implies that the burden of
proof should lie with the proponent of the name change. We
believe that this implication should only apply to proceedings
seeking to change a child's name that both parents agreed to, not
to initial naming disputes.
14 One of the written findings signed by the court states
as follows: "Mr. Gieser declined to sign the necessary paperwork
in Washington at the time of the child's birth to be included on
the birth certificate." While this finding is accurate, it
cannot be read to imply that Gieser agreed with Starling's choice
of a surname for the child. Gieser testified that when he
visited Starling and the child just after the birth of the child,
"I don't think I wanted to sign anything, as there was custody
proceedings underway regarding my son." Given the extraordinary
steps that Gieser took both just before and just after the birth
of the child to ensure that his name be included as part of the
child's surname, we believe that no inference of acquiescence can
be inferred from his refusal to sign papers in the hospital room.
15 994 P.2d 389, 392 (Alaska 1999).
16 See id. at 392.
17 465 N.E.2d 85 (Ill. 1984).
18 Acevedo, 994 P.2d at 391 (quoting In re Marriage of
Presson, 465 N.E.2d at 88).
19 Id. (quoting In re Marriage of Presson, 465 N.E.2d at
88).
20 525 N.W.2d 695 (S.D. 1994).
21 Id. at 699 (citations and quotations omitted).
22 Lisa Kelly, Divining the Deep and Inscrutable: Toward a
Gender-Neutral, Child-Centered Approach to Child Name Change
Proceedings, 99 W. Va. L. Rev. 1, 33 (1996).
23 See, e.g., In re Marriage of Douglass, 252 Cal. Rptr.
839, 844-45 (Cal. App. 1988); In re Change of Name of Andrews,
454 N.W.2d 488, 493 (Neb. 1990); Ronan v. Adely, 861 A.2d 822,
826-27 (N.J. 2004); In re Willhite, 706 N.E.2d 778, 782 (Ohio
1999); Knauer v. Keener, 758 N.E.2d 1234, 1237 (Ohio App. 2001).
24 706 N.E.2d 778, 782-83 (Ohio 1999).
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