Herdman v. Schiffman

Opinion NEWMAN, J. Appellant challenges the portion of an interlocutory decree that changes her child’s surname from appellant’s birth name (formerly called “maiden name”) to the surname of the father and enjoins each parent from any further change without court permission. We confront a conflict between (1) common law and custom, which have given the father a “primary right” to have his child bear his surname, and (2) the legal and moral obligations of society to respect a — 642 — mother’s rights regarding her child. After appraising the present-day rights of both the mother and father, as pronounced by the Legislature, we conclude that the common law should give way. The trial court premised its ruling on cases and custom that seem outpaced by recent legislative and social developments, Consequently we rule that, as in custody disputes, quarrels concerning a child’s surname should be decided according to the best interests of the child. Ms. Herdman and Mr. Schiffman were married on January 15, 1977 aiyl separated six months later. She then was four months pregnant. On August 4, 1977, she petitioned for dissolution and noted that there was an unborn child. The child was born on November 2, and Ms. Herdman registered the name on the birth certificate as Aita Marie Herdman. The dissolution was called for trial on February 21, 1978, and essentially was uncontested. The trial was largely devoted to financial issues, and the court granted dissolution and awarded custody of Aita Marie to Ms. Herdman. The court raised the question of the surname and, for its statement of the law, summarized two Court of Appeal decisions, In re Worms (1967) 252 Cal.App.2d 130 [60 Cal.Rptr. 88] and Montandon v. Montandon (1966) 242 Cal.App.2d 886 [52 Cal.Rptr. 43]. They state the traditional rule that the father has a “primary right” or “protectible interest” in having the minor child bear his surname even after the mother is awarded custody. (Montandon, at pp. 889-892; Worms, at pp. 134-135; see also In re Trower (1968) 260 Cal.App.2d 75, 77 [66 Cal.Rptr. 873]; In re Larson (1947) 81 Cal.App.2d 258, 262 [183 P.2d 688].) Under that rule a change is permitted not to save the child from “inconvenience and embarrassment” but only when there is “substantial” reason to do so, as “‘where the father’s misconduct has been such as to justify a forfeiture of his rights or where his name is positively deleterious to the child ....’” (Worms, at p. 135, quoting from 53 A.L.R.2d 915.) Relying on Worms and Montandon the trial court ruled that “the child’s name is as the law prescribes the surname of the father.” (Italics added.) It also ruled that Ms. Herdman “will have no authority” to change her daughter’s surname without a court order giving her permission to do so, and it put teeth in the ruling by prescribing that “each party is enjoined from changing the child’s surname from Schiffman.” Ms. Herdman has appealed. — 643 — Should Worms, Montandon, Trower, and Larson be overturned? Nothing in the statutes or Constitutions of the United States or California dictates that a child bear the father’s surname. Nor, when parents disagree, is there any command other than in common law that the father’s name be preferred. Surnames have been used at least since the Norman Conquest. In early days they were derived from individual reputations, characteristics, occupations, or places of birth and residence and were not passed from generation to generation. The custom of patrilineal succession seems to have been a response to England’s medieval social and legal system, which came to vest all rights of ownership and management of marital property in the husband. “[T]he inheritance of property was often contingent upon an heir’s retention of the surname associated with that property.” (Note, The Controversy Over Children’s Surnames: Familial Autonomy, Equal Protection and the Child’s Best Interests (1979) Utah L.Rev. 303, 305 (Utah Note); see Montandon, supra, at p. 890.) The trend toward paternal surnames was accelerated by Henry VIII, who required recordation of legitimate births in the name of the father. Thence the naming of children after the fathers became the custom in England. {Ibid.) At common law a married woman had little legal identity apart from her husband’s. The fiction that husband and wife were one “worked out in reality to mean that .. .the one [was] the husband....” (United States v. Yazell (1966) 382 U.S. 341, 361 [15 L.Ed.2d 404, 415, 86 S.Ct. 500] [dis. opn. of Black, J.].) After marriage, custom dictated that the wife give up her surname and assume the husband’s. She could no longer contract or litigate in her own name; nor could she manage property or earn money. (Babcock, et al., Sex Discrimination and the Law (1975) pp. 561-563.) Allowing the husband to determine the surname of their offspring was part of that system, wherein he was sole legal representative of the marriage, its property, and its children. Today those bases for patrimonial control of surnames have virtually disappeared. In the mid-19th century, Married Women’s Property Acts returned to wives a separate legal identity. (Id., at p. 593.) Progress toward marital and parental equality has accelerated in recent years. Most important for our purposes are many steps the California Legislature has taken to abolish outmoded distinctions in the rights of spouses and parents. In little more than a decade the statutes drastically have — 644 — redesigned California’s regulation of the family and have eliminated many sex discriminations in parental rights and responsibilities. The Family Law Act (Civ. Code, § 4000 et seq.), enacted in 1969, effected changes including the adoption of “no-fault” divorce (§ 4506). In 1972 the Legislature deleted the preference accorded mothers in custody disputes involving young children (§ 4600, as added by Stats. 1969, ch. 1608, § 8, p. 3330) and required that custody be awarded to “either parent according to the best interests of the child.” (Stats. 1972, ch. 1007, § 1, p. 1855); see In re Marriage of Carney (1979) 24 Cal.3d 725, 730 [157 Cal.Rptr. 383, 598 P.2d 36].) In 1979 the Legislature strengthened section 4600, declaring that it is public policy to encourage divorced parents “to share the rights and responsibilities of child rearing...” The Legislature decreed that, in awarding custody, the trial court “shall not prefer a parent as custodian because of that parent’s sex.” (§ 4600, subds. (a), (b)(1), as provided by Stats. 1979, ch. 204, §§ 1, 3.) The 1973 statutes eliminated virtually all sex-specific differences in property rights of spouses. (Ch. 987, p. 1897.) The Legislature repealed the declaration that “The husband is the head of the family” (former § 5101); it provided that “either spouse” rather than “the husband” has the management and control of both the community personal property (§ 5125, subd. (a)) and the community real property (§ 5127); and throughout the Family Law Act it gave the wife the same property rights as the husband by use of the sex-neutral designation of “spouse” (e.g., §§ 5120, 5121). In 1975 the Legislature adopted the California Uniform Parentage Act. (Stats. 1975, ch. 1244, § 11, p. 3196.) One of its aims is to eliminate legal distinctions between legitimate and illegitimate children. It provides that “As used in this part, ‘parent and child relationship’ means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” (§ 7001.) Further: “The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” (§ 7002.) The major premise is that “ . . . regardless of the marital status of the parents, all children and all parents have equal rights with respect to each other.” (U. Parentage Act, § 2, Comrs. com.) — 645 — Recently the Court of Appeal ruled that the Uniform Parentage Act abrogates common law rules governing parental disputes over children’s surnames. (Donald J. v. Evna M. (1978) 81 Cal.App.3d 929 [147 Cal.Rptr. 15].) A child was born out of wedlock, and the mother used her own surname as that of the infant on the birth certificate. Three years later the plaintiff commenced an action to have himself declared the father. He also sought an order directing that the child use his surname and that the birth certificate be corrected. The trial court denied his request, stating that use of a name cannot be prohibited unless fraud is involved. The Court of Appeal reversed. It first conceded that, if plaintiff was the father, he had some legal right to control his child’s surname. It further recognized that at common law the father of a child born in wedlock and the mother of a child born out of wedlock had primary rights to determine the child’s surname. (Pp. 936-937.) However, the court reasoned, “[w]ith the adoption of the California Uniform Parentage Act no longer can it be said that a parent has a primary right or protectible interest in having his or her child bear and maintain that parent’s surname merely because of the parent’s sex and marital status with respect to that child’s other parent at the time the child is born. The controlling consideration in determining whether a change in a child’s surname should be ordered against the objection of one of the parents, is the welfare of the child [citations].” (P. 937.) Plaintiff therefore had the right to a determination of surname, based on the legal standard of the child’s best interest. We think that is the correct rule. While neither the Uniform Parentage Act nor other legislation expressly overrules the common law, is there not a compelling implication to that effect? (Cf. Stone, The Common Law in the United States (1936) 50 Harv. L.Rev. 4, 12-16.). The Legislature clearly has articulated the policy that irrational, sex-based differences in marital and parental rights should end and that parental disputes about children should be resolved in accordance with each child’s best interest. It is argued that rules preferring the paternal surname are justified because they formalize long-standing custom, provide a convenient and certain surname system, make official record-keeping simpler, and minimize confusion and difficulty with public and private bureaucra — 646 — cies. (Utah Note, at pp. 307-308.) Moreover, courts and commentators have pointed out that identification with the paternal surname may give the child a healthy sense of family as well as ethnic and religious identity and also maintain her or his rightful link with an absent or noncustodial father. (Id., at pp. 321-325.) None of those concerns mandates retention of the father’s preference. Surnames now may be changed in many situations, and the patrilineal rule has hardly been absolute.1 Our record-keeping and genealogical systems cope well with the truly significant number of individuals and families that already deviate from the biological-patrilineal norm. We see no reason why these systems cannot accommodate too a fairer standard for resolving disputes between biological parents. Further, the changing family patterns that are recognized and encouraged by the Uniform Parentage Act support the conclusion that once-accepted assumptions about “family identity” and “noncustodial fathers” are losing force. To the extent that understandable concerns do arise in particular cases, cannot they be fully considered in the context of the “child’s best interest” test? That test should neither consume inordinate judicial time nor engender confusion in the keeping of birth records. Here we are not presented with the question of what name originally should be entered on a birth certificate. Nothing we say is intended to change the established practice in that regard or disturb the prevalent custom of giving a child born in wedlock the paternal surname. (Donald J., supra, 81 Cal.App.3d at p. 936.) Nor do we create any new right to involve the courts in surname disputes. Rather, we consider only the test to be applied when such a dispute does arise between natural parents. Adoption of a “best interest” test is but an evolutionary change in the state’s rules for resolving parental disputes over children’s surnames. — 647 — Even Trower, supra, 260 Cal.App.2d 75, decided before the recent legislation that helps effect equality of spouses and parents, conceded that a father’s interest in having his child bear his name “. .. is not absolute. The best interests of the child are paramount.” (P. 77; see also Montandon, supra, 242 Cal.App.2d 886, 889-892.) “When the reason for a rule ceases, so should the rule itself.” (Civ. Code, § 3510.) “The true doctrine is, that the common law by its own principles adapts itself to varying conditions, and modifies its own rules so as to serve the ends of justice under the different circumstances ....” (Katz v. Walkinshaw (1903) 141 Cal. 116, 123 [70 P. 663, 74 P. 766].) We conclude that the rule giving the father, as against the mother, a primary right to have his child bear his surname should be abolished. Henceforth, as in parental custody disputes, the sole consideration when parents contest a surname should be the child’s best interest. Expressions to the contrary in Trower, Worms, Montandon, and Larson are disapproved. Under the test thus revised the length of time that the child has used a surname is to be considered. {Donald J., supra.) If, as here, the time is negligible because the child is very young, other facts may be controlling. For instance, the effect of a name change on preservation of the father-child relationship, the strength of the mother-child relationship, and the identification of the child as part of a family unit are all pertinent. The symbolic role that a surname other than the natural father’s may play in easing relations with a new family should be balanced against the importance of maintaining the biological father-child relationship. “[T]he embarrassment or discomfort that a child may experience when he bears a surname different from the rest of his family” should be evaluated. (Utah Note, p. 330.) In recognizing a father’s right to have his child bear his surname, courts largely have ignored the impact a name may have on the mother-child relationship. Perhaps that is because mothers, usually given custodial preference in the past, generally had more regular contact and could maintain a psychological relationship without the need for the tie a surname provides. However, “the maternal surname might play a significant role in supporting the mother-child relationship, for example, in the cases where the father is the custodial parent or where the custodial mother goes by her birth-given surname.” {Ibid.', italics added.) Ms. — 648 — Herdman uses her birth name; and Aita Marie’s future friends, neighbors, teachers, acquaintances, and family indeed may associate her with the name Herdman rather than Schiffman. The trial court apparently failed to weigh those considerations and relied exclusively on the anachronistic, father’s “primary right” theory to decide the issue. Accordingly, the portion of the interlocutory decree that changes the child’s surname is reversed. The cause is remanded to the trial court for a finding whether the name change requested by the father is in the best interests of the child. Tobriner, J., and Manuel, J., concurred. Footnotes [1] For example, apart from parental disputes, California recognizes the common law right to change one’s name by nonfraudulent usage (Code Civ. Proc., § 1279.5, subd. (a); see In re McGehee (1957) 147 Cal.App.2d 25, 26 [304 P.2d 167]) and also provides a name-change proceeding to be brought by the person whose name is sought to be changed, his parent, guardian, or other near relative. (Code Civ. Proc., § 1276.) Name changes may arise from personal or parental preference, adoption, and other circumstances. Indeed, in California and elsewhere the right of a competent person to choose and change her or his surname cannot lightly be overcome. (McGehee, supra; see Utah Note, at p. 317 and fn. 63.)