Petitioner seeks an order, pursuant to Article 6 of the New York Civil Rights Law, changing her daughter Geovana's last name from Donaldson, the surname of the Geovana's father, to petitioner's own surname, Thurman. Geovana's father, Eric Donaldson, objects to the name change.

Common law recognizes a person's right to change his or her name without the necessity of legal proceedings so long as the change is not made to deceive or perpetrate a fraud or to avoid an obligation (In re Conde, 186 Misc 2d 785; Application of Stempler, 110 Misc 2d 174). Article 6 of the Civil Rights Law is a statutory confirmation of that right and provides a formal mechanism for making such a change and establishing an official record (see, e.g., Smith v U.S. Casualty Co.,197 NY420; Stempler, supra, 110 Misc 2d at 174). Section 63 of the Civil Rights Law authorizes a court to grant a petition to change a child's name where it is satisfied that "there is no reasonable objection to the change of name proposed," and that "the interests of the infant will be substantially promoted by the change" (see In the Matter of Siira,7 AD3d 803). In the absence of any objection to the petition and in conformance with the premise that, as a general matter, a child's parents will be better judges than a court as to what is in the child's best interests, infant name-change petitions are usually granted based upon the affidavit of the petitioner and certain supporting documents. In the face of an objection by one of the child's parents, it is incumbent upon a court to hold an evidentiary hearing and determine if the objection is reasonable and if the proposed change would substantially promote the child's interests. An evidentiary hearing in this matter was held on September 20, 2004, and this constitutes the court's findings and conclusion.

Geovana is six years old. Mr. Donaldson apparently never lived with Ms. Thurman and Geovana. In addition, Ms. Thurman testified that Mr. Donaldson had never contributed to Geovana's support and had little or no involvement in her life, despite Ms. Thurman's encouragement that he do so. Ms. Thurman's testimony was supported by the testimony of her mother, her current partner and the father of Geovana's newborn half-sister — Mr. Donaldson's cousin, and even Mr. Donaldson's current wife, whom Mr. Donaldson called as his witness. Ms. Thurman also testified that, on at least one occasion, Mr. Donaldson had acted violently toward her. The testimony also indicated that Ms. Thurman's family was extensively involved in [*2]Geovana's life.

Mr. Donaldson acknowledged that he had not been very involved in Geovana's life, but argued that Ms. Thurman's family had threatened him and discouraged him from participating in Geovana's life a charge that Ms. Thurman and her witnesses denied.

There is nothing in human-made or "natural" law that requires or even suggests that a child bear her father's surname (see In re Williams, 86 Misc 2d 87 [Civ Ct Queens Cty, 1976]). The practice is no more than that a practice or custom born out of a patriarchal system and view of children as property (see, e.g., In the Matter of Alberto Bachman, Jr., 1 NY2d 575, 582[1956]). Since we have progressed past the point that children are seen as property and since a father has no inherent "right" to have his child bear his surname, there should be no presumption in favor of the child carrying the father's rather than the mother's surname (cf. Bell v Bell, 116 AD2d 97 [3d Dept. 1986] [the obligation of a parent to contribute to the support of the child is not conditioned on the child's bearing the paying parent's name]). That being the case, the only question that need be addressed in the face of a dispute between the child's parents as to whether a child's surname should be changed is what surname best satisfies the best interests of the child.

It is the view of this court that, in contested child name-change cases such as this, there should be a rebuttable presumption in favor of the child being known by the custodial parent's surname. Having the child share the custodial parent's name can alleviate confusion in the child's day-to-day life and obviate the need to explain to school administrators and teachers, doctors, insurance companies, and government agencies why the child has a different name than that of the parent who must deal with such entities on a regular basis. Such an assumption emphasizes the "associational" aspects of a child's name over the noncustodial parent's proprietary interests (see generally Weiner, M., "We Are Family": Valuing Associationalism in Disputes Ov er Children's Surnames, 75 N.C. L. Rev. 1625 [1997]; see also Rio v Rio, 132 Misc 2d 316).

The presumption should be especially strong where the noncustodial parent has not been significantly involved in the child's life. The presumption may be overcome by evidence of some substantial countervailing consideration, and it may diminish in strength the older the child is and, consequently, the longer she has been known by the name first given. As a child grows older, enters school, and comes to be known by her teachers, classmates, and friends by the name she was given originally, the more proprietary interest a child has in keeping that name as an indicia of her own not the parent's identity. Thus, for example, an infant or toddler will have virtually no investment in whether she is known by her mother's or father's surname, and, in the event of a contested name change application, the presumption that she should carry the custodial parent's name is especially strong. By the time the child has reached the age of 10 or 12, she may be more invested in maintaining the name by which she has been known or she may be able to articulate her own desire as to her surname.

In the present case then, the court begins with the presumption that Geovana's best interests will be served if her surname is changed to her mother's surname. While Geovana has been known for the six years of her young life by her father's name, it is unlikely that she has yet developed such a proprietary interest in that name that the presumption should be overcome. Nor, at this point in Geovana's life should a name change cause any significant confusion that would overcome the presumption. In fact, since the evidence establishes that it is her mother [*3]and her mother's family — who come into contact with all the other people and entities involved in Geovana's life, having her share her mother's name should diminish the possibility of confusion. Finally, Geovana's father has presented the court with no evidence of any other consideration that would diminish the presumption that she should carry her custodial parent's surname or that his objection is reasonable.

For the foregoing reasons, it is the decision of this court that Ms. Thurman's application to change her daughter's surname from Donaldson to Thurman is granted and Geovana's name shall be changed in accordance with the attached Order.

Dated: November 3, 2004__________________________________

Ann E. O'Shea, JCC