In re Eberhardt

83 A.D.3d 116, 920 N.Y.S.2d 216
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 29, 2011
StatusPublished
Cited by26 cases

This text of 83 A.D.3d 116 (In re Eberhardt) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Eberhardt, 83 A.D.3d 116, 920 N.Y.S.2d 216 (N.Y. Ct. App. 2011).

Opinion

OPINION OF THE COURT

Chambers, J.

Introduction

On this appeal we take the opportunity to clarify the law on a proposed infant name change, particularly as it pertains to a hyphenation of a child’s surname to include the last names of both parents.

Michelle I. Esquenazi (hereinafter the mother) and John Eberhardt (hereinafter the father) are the parents of now nine-year-old Mariah (hereinafter the child). When the child was [118]*118conceived, the parties had been in a committed relationship for a number of years and lived together along with the mother’s three children from a prior marriage.1 The parties had been planning on marrying at the time but decided to postpone the wedding until after the child’s birth. The child was born, and she was given the father’s surname, as reflected by the child’s birth certificate and the acknowledgment of paternity. A wedding never took place. Approximately IV2 years after the child’s birth, the father moved out of the parties’ home. The mother maintained physical and legal custody of the child, with the father visiting her regularly, an arrangement later sanctioned, with their consent, by the Family Court.

In 2008, the mother petitioned the Supreme Court for permission to change the child’s surname by hyphenating the father’s surname with the mother’s surname. The impetus for the change was the mother’s use of both parties’ surnames on the child’s application for a passport. The father, before signing the application, redacted the mother’s surname. The mother reinserted her surname and filed the application, leading the father, once he saw the child’s passport, to contact federal officials and ask that the passport reflect her legal name.

The mother moved for summary judgment on the petition, and the Supreme Court ordered a hearing (see CPLR 409).2

The Hearing

The Mother’s Case

At a hearing on the petition, the mother testified that during her pregnancy, she and the father “discussed” the child having both parties’ last names. Although only the father’s surname was used on the child’s birth certificate, an announcement of the child’s birth used both parties’ surnames.

At 2V2 years of age, the child was baptized into the Lutheran Church. Leading up to the baptism, the parties had discussed using both parties’ surnames, as the mother wanted the child to identify with both parents and to share the surnames of her maternal and paternal half-siblings.3 The parties attended the baptism, and the pastor announced the child to the congrega[119]*119tion as Esquenazi-Eberhardt. The baptismal certificate, which the father saw, reflected the child’s surname as a combination of the parties’ surnames. The father did not object to the child’s surname.

The child was enrolled in preschool, registered as Esquenazi-Eberhardt, and again under the same hyphenated surname when she started kindergarten. The father attended various school functions, including the child’s graduation from preschool to kindergarten, and then kindergarten to the first grade, where the parties’ hyphenated name was used during the roll-call of graduates, in pamphlets announcing the graduates, and graduation certificates, all without objection from the father.

At around four years of age, the child began to write her hyphenated name. In school, on important tests or pieces of artwork, the child would write out both full surnames, while on informal assignments she abbrieviated the hyphenated surname to “E.E.” The child, the mother related, very proudly and happily uses the hyphenated surname.

It was the child’s self-identification as Esquenazi-Eberhardt that the mother offered as a reason why the name change would promote the child’s best interests. The hyphenated name gave the child a connection with both parents, her paternal and maternal half-siblings, and her ethnic heritage, Cuban-American on the mother’s side, and Native-American on the father’s side. The mother had never and would never seek to eliminate the father’s last name. The child, the mother told her, was half of her mother and half of her father.

The Father’s Case

The father testified that when the child was born, there was never really any conversation about the child’s last name. It was simply a given that she would have only his surname, as the parties were planning on marrying and he was the father.

The father denied ever seeing or hearing the child’s hyphenated surname used in the birth announcement, at the baptism, or at school events such as the child’s graduation from kindergarten and, if he attended, preschool. He claimed that he never acquiesced to the child using both surnames. On both the custody and support orders, the child had only the father’s surname. The father testified that the first time he saw the hyphenated surname used was when the mother filled out a passport application. The second time, the child came to the father’s home with a report card that contained the mother’s [120]*120surname, with the father’s surname penciled in next to it. The mother explained, when he questioned her, that the school had made a mistake, using the mother’s surname because one of her other children attended the same school. The mother told him that she would have it corrected.

The father claimed that he had seen the child use the hyphenated surname in writings, but that was after he objected to her using it.

Asked why he objected to the proposed name change and why retaining the child’s current surname would promote her best interests, the father answered,

“Moralistic values, traditional values. Her name is and always was legally Mariah Ruby Eberhardt and I don’t see any reason or need for it to be changed. It was never agreed upon between the mother and myself, and I think the lesson that’s learned from being able to make anything, anything you want, any time you want to, is really a deviation of values and morals that should be instilled in a child.”

The father believed that a hyphenated name announced to the world that the child came from a broken relationship. He asserted that the questions that would come from her hyphenated surname would be a source of embarrassment.

The father acknowledged that it was important for the child to identify with both parents, but it was also important “to learn to tell the truth and follow the rules.” If the child told him she wanted to use both surnames, he would still love her, but that decision “wouldn’t come to being without brainwashing.”

Lincoln Hearing

The Supreme Court conducted an in-camera interview with the child, the contents of which are confidential and will not receive further comment (see Matter of Lincoln v Lincoln, 24 NY2d 270 [1969]).

The Order Appealed From

The Supreme Court denied the mother’s motion for summary judgment, denied the petition, and dismissed the proceeding.

The Supreme Court found that the father had reasonable objections to the name change. He was involved in the child’s life. He visited with her, provided her with emotional and [121]*121financial support, and included her in his extended family. The Supreme Court indicated that in the absence of misconduct, abandonment, or lack of support, the application should not be granted.

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Cite This Page — Counsel Stack

Bluebook (online)
83 A.D.3d 116, 920 N.Y.S.2d 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-eberhardt-nyappdiv-2011.