McKenzey Mae DeGrace to McKenzey Mae DeGrace-Ward

• Court: Delaware Court of Common Pleas
• Decided: June 20, 2018
• Docket: CPU6-18-000500
• Status: Published

Opinion

IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY

IN THE MATTER OF: ) ) MCKENZEY MAE DEGRACE, ) C.A. No. CPU6-18-000500 ) Petitioner, ) Petitioner’s Date of Birth: ) September 29, 2015 TO ) ) MCKENZEY MAE DEGRACE-WARD )

Submitted: May 8, 2018 Decided: June 20, 2018

Cortney Ward, Pro Se, Mother of Petitioner McKenzey Mae DeGrace. Sean M. Lynn, Esq., Attorney for Respondent Joseph A. DeGrace.

DECISION ON PETITION FOR NAME CHANGE

On May 8, 2018, the Court held a contested hearing on a Petition to change the

minor child McKenzey Mae DeGrace’s surname to DeGrace-Ward. At the close of the

hearing, the Court reserved decision.

FACTS AND PROCEDURAL HISTORY

On March 23, 2018, Petitioner McKenzey Mae DeGrace filed this Petition through

her natural mother, Cortney Ward, seeking to add Cortney’s surname to McKenzey’s

surname with a hyphen. Notice of the Petition was published in a local periodical and

served upon McKenzey’s father in accordance with applicable statutes and Court Rules.

McKenzey’s natural father, Joseph A. DeGrace, opposes the Petition. The Court

heard the following testimony from the parents.

Cortney and Joseph were married January 10, 2014. Prior to the marriage,

Cortney’s surname was Ward, and during the marriage, Cortney’s surname was DeGrace.

At all times, Joseph’s surname has been DeGrace. McKenzey Mae, Cortney and Joseph’s

only child, was born during the marriage on September 29, 2015, and given the same

surname used by both parents at the time. Cortney and Joseph separated on April 8, 2017,

and were divorced on November 22, 2017. Cortney resumed her surname of Ward. Cortney and Joseph lived together with McKenzey from her birth until their

separation, when Cortney and McKenzey moved to Milton, Delaware to live with

Cortney’s parents, Carl and Cathy Ward. Cortney and McKenzey still reside at that

address. Cortney testified that McKenzey has a positive relationship with Carl and Cathy

and her extended maternal family.

As of the date of the hearing, custody and placement of McKenzey is governed by

an interim custody order entered by Family Court. A final custody hearing is scheduled

for July 2018. Under the interim order, Cortney has primary placement of McKenzey, and

Joseph has visitation with McKenzey every other weekend from Friday evening until

Monday morning, one overnight in the middle of the week, and a dinner visit in the middle

of the week. Joseph faithfully sees McKenzey at the appointed times.

The points of dispute at the hearing primarily concerned two topics: (1) Cortney’s

objections to McKenzey being left alone with certain members of Joseph’s family; and (2)

an incident at the pharmacy where McKenzey’s prescription came to be logged under the

surname DeGrace-Ward.

In short, Cortney testified that she objects to McKenzey being left alone with

certain members of Joseph’s family. Cortney testified to various behaviors she has

observed in Joseph’s family and the reasons why she believes it would be in McKenzey’s

best interest that contact with certain members only occur in a supervised setting or public

place. No evidence was presented that any member of Joseph’s family has ever been

convicted of any crime or investigated for any misconduct towards children, and Cortney

testified that she is not aware of any such evidence.

Joseph testified that Cortney’s allegations concerning his family members are

untrue and her characterization of his family as dysfunctional is unfounded.

Cortney and Joseph’s testimony regarding the incident at the pharmacy is similarly

at odds. Joseph testified that he presented himself at Walgreens on a Friday evening to

2 check on a prescription for McKenzey and, at that time, the prescription was under the

name McKenzey Mae DeGrace. Joseph further testified that on Saturday morning

Cortney expressed her displeasure with Joseph attempting to fill McKenzey’s prescription

without her knowledge to him via text message. When Joseph returned to the pharmacy

to pick up the prescription on Monday, Walgreens was initially unable to locate the

prescription because the prescription was filled under the name McKenzey Mae DeGrace-

Ward.

Cortney testified that the pharmacy changed McKenzey’s name in its system from

DeGrace to DeGrace-Ward due to an issue with processing the prescription through

Cortney’s insurance. Joseph questioned the likelihood that the pharmacy would take such

an action on its own, implying that Cortney requested that McKenzey’s surname be

changed in order to interfere with Joseph’s attempt to fill the prescription. Cortney denied

any involvement in the decision to change McKenzey’s surname from DeGrace to

DeGrace-Ward in the pharmacy’s system.

With regard to what effect changing McKenzey’s surname to DeGrace-Ward will

have on McKenzey’s relationship with her family, Cortney expressed her desire to share

her last name with McKenzey and testified that the change would help identify McKenzey

with Cortney and the other members of McKenzey’s home since April, 2017.

Joseph testified that he believes Cortney has engaged in a course of conduct

calculated to alienate McKenzey from Joseph’s family, including attempting to limit

contact between McKenzey and Joseph’s family and allegedly attempting to interfere with

Joseph’s employment by emailing allegations of abuse to his employer. Joseph

characterizes the Petition as an attempted manipulation of McKenzey’s identity,

essentially to undermine McKenzey’s identity as a member of the DeGrace family.

Cortney and Joseph both testified that McKenzey is too young to express a

preference regarding her surname.

3 DISCUSSION

As an initial matter, Respondent did not raise any issue with the form of the Petition

at the hearing, and the Court finds that the Petition for Name Change complies with the

statutory requirements of Title 10, Chapter 59 of the Delaware Code and with the

requirements of Court of Common Pleas Civil Rule 81.

Until relatively recently, the Court evaluated all petitions to change the name of

minor children using ten factors. 1 The factors are used to determine whether granting

the petition would be in the best interests of the child.2 This ten factor determination has

been superseded by statute—10 Del. C. § 5904(b)—in cases where a parent of a minor

seeks to add that parent’s surname to the minor’s surname “either as an additional name

or hyphenated with the minor’s previously-existing surname.”3 In such cases, there is a

statutory presumption in favor of granting the petition.

A parent opposing such a petition can overcome the presumption by producing

clear and convincing evidence that the totality of the factors enumerated in § 5904(b)

demonstrate that granting the petition “would cause the minor more harm than

benefit[.]”4 The factors enumerated in § 5904(b) are:

1 See, e.g., Lavoie v. Boone, 2016 WL 5400298, at *3 (Del. Super. Sept. 15, 2016) (“In determining whether ‘the best interests of the child’ would be served by granting the proposed name change, the trial court considered the following factors: 1. A parent’s failure to financially support the child; 2. A parent’s failure to maintain contact with the child; 3. The length of time that a surname has been used for or by the child; 4. Misconduct by one of the child’s parents; 5. Whether the surname is different from the surname of the child’s custodial parent; 6. The child’s reasonable preference for a surname; 7. The effect of the change of the child’s surname on the preservation and development of the child's relationship with each parent; 8. The degree of community respect associated with the child’s present surname and proposed surname; 9. The difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed name; and 10. The identification of the child as a part of the family unit.” (citing In re Boone, 2015 WL 9463249, at *2 (Del. Com. Pl. Dec. 21, 2015)). 2 Id. 3 House Bill 178, 149th General Assembly (Present), Delaware General Assembly, http://legis.delaware.gov/BillDetail?legislationId=25787; 81 Del. Laws ch. 141 (2017), http://delcode.delaware.gov/sessionlaws/ga149/chp141.pdf. 4 Clear and convincing evidence is evidence that “produces in the mind of the trier of fact an abiding conviction that the truth of [the] factual contentions [is] ‘highly probable.’” Hudak v. Procek, 806 A.2d 140, 147 (Del. 2002) (quoting 4 (1) The length of time that a surname has been used for or by the minor.

(2) The minor’s reasonable preference for a surname.

(3) The effect of the change of the minor’s surname on the preservation and development of the minor’s relationship with each parent.

(4) The identification of the minor as a part of the family unit or, if applicable, multiple family units.

The four factors enumerated in § 5904(b) are all but identical to four of the ten “best

interests of the child” factors.5

The synopsis for the legislation adding subsection (b) to § 5904(b) explained the

purpose of the amendment as follows:

The children of parents who divorce or were never married often share a surname with only one parent, which may lead to confusion or hardship when schools, doctors, or others fail to recognize the child’s connection with the parent with whom the child does not share a similar surname. Parents and children in such circumstances have compelling reason to seek to add a second surname to the child’s name.6

In the instant Petition, Cortney Ward seeks to add her surname to her minor child’s

surname. Under § 5904(b), there is a presumption in favor of granting the Petition.

Therefore, the Court must consider the four factors enumerated in § 5904(b) to determine

if Respondent has overcome the presumption by producing clear and convincing evidence

that granting the Petition would cause McKenzey more harm than benefit.

With regard to the first factor—the length of time the minor’s current surname has

been used by or for them—McKenzey has been known by the surname DeGrace since her

birth on September 29, 2015.

With regard to the second factor—the minor’s reasonable preference for a

surname—McKenzey is too young to express a reasonable preference for a surname.

Cerberus Int'l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1151 (Del. 2002) (quoting Cerberus Int’l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1151 (Del. 2002)). 5 See House Amendment No. 1 to House Bill 178, 149th General Assembly (Present), Delaware General Assembly, http://legis.delaware.gov/BillDetail?legislationId=25873 (adding the phrase “or, if applicable, multiple family units” after “The identification of the minor as a part of the family unit”). 6 House Bill 178, 149th General Assembly (Present), Delaware General Assembly, http://legis.delaware.gov/BillDetail?legislationId=25787. 5 With regard to the third factor—the effect of the change of the minor’s surname on

the preservation and development of the minor’s relationship with each parent—Cortney

testified that sharing a surname with McKenzey would help preserve their relationship

and help develop McKenzey’s identification with her mother’s family. Joseph testified

that granting the name change would further Cortney’s alleged effort to alienate

McKenzey from her father and his family.

With regard to the fourth factor—the identification of the minor as part of the

family units or units—Cortney testified that McKenzey would be more readily identifiable

as her daughter if she shared Cortney’s surname.

In this case, the child’s age renders the first and second factors, essentially,

immaterial. The issue is the third and fourth factors, and whether adding Cortney’s

surname to McKenzey’s surname would cause McKenzey more harm than benefit due to

damage caused to McKenzey’s relationship and identification with her father and his

family.

The evidence of benefit to McKenzey consists of the fact that, if the Petition were

granted, McKenzey would share a surname with her mother, helping her identify with her

mother and her mother’s family, including Carl and Cathy Ward with whom McKenzey

currently lives. Sharing a surname with the parent and other family members in

McKenzey’s current primary household clearly benefits McKenzey’s relationship and

identification with her mother and her mother’s family, which was the obvious intent of

the General Assembly in adopting the controlling statute.

The evidence of harm to McKenzey consists of Joseph’s testimony that Cortney

seeks to limit McKenzey’s relationship with certain members of Joseph’s family for

unfounded reasons and, more broadly, seeks to control McKenzey, all of which Joseph

characterizes as a course of conduct intended to undermine McKenzey’s relationship with

his family. What is missing from this evidence is a link between merely adding the

6 surname Ward to McKenzey’s surname—without eliminating or replacing DeGrace—and

damage to McKenzey’s relationship and identification with her father and her father’s

family. Respondent’s has not convinced the Court that Cortney’s intention in seeking this

name change is part of a plan or pattern to harm or interfere with McKenzey’s relationship

with her father. The Court finds that Respondent has not presented clear and convincing

evidence that granting the proposed name change will cause McKenzey more harm than

benefit.

Finally, at the close of the hearing, the Court solicited the parents’ preference of

name order if it were to order a hyphenated name. Although Cortney had petitioned to

change McKenzey’s surname to DeGrace-Ward, Joseph stated his preference for Ward-

DeGrace, and Cortney indicated that order would be acceptable to her. The Court finds

that so ordering the joint surnames would benefit McKenzey to the extent it promotes

further harmony between her parents, and it accepts Cortney’s concession as an

amendment to the Petition.

CONCLUSION

For the foregoing reasons, the amended Petition to change McKenzey Mae

DeGrace’s name to McKenzey Mae Ward-DeGrace is GRANTED.

IT IS SO ORDERED.

______________________________ Kenneth S. Clark, Jr., Judge