Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

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

In the Matter of a Change of Name for A.C.S., A Minor Child (11/28/2007) sp-6208, 171 P3d 1148

     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).
This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC