We are Family: Valuing Associationalism in Disputes Over Children's Surnames

Abstract

Alan Gubernat killed his three-year-old son, Scott, and himself three days after the New Jersey Supreme Court decided that his son would bear the surname, Deremer, and not the surname Gubernat. Deremer was the last name of the boy’s mother. Although rarely this tragic and dramatic, naming disputes strike a deep chord, evoking for some parents not only the nature of their relationship with their child, but deep-felt beliefs about themselves.

This article examines current claims by courts that the law governing children’s naming disputes is not gender biased. It argues that despite the advent of the custodial parent presumption, and the proclamations by courts that still adhere to other standards – primarily the best interest standard – that the law no longer protects the male interest, none of the standards for resolving naming disputes have eliminated the law’s male bias. Courts (and commentators) fail to recognize that most men and women view their children’s surnames differently because of their very diverse experiences with their own surnames. Instead men’s views are treated as the norm, while women’s views are ignored, with problematic practical and symbolic consequences.

The article uses social science literature, fiction, and a variety of other sources to establish that women, faced with the prevalent societal custom of changing one’s surname upon marriage, generally see surnames as labile and surname change as positive. An unwavering surname is not essential for most women’s coherent sense of self, nor does the ephemeral label determine love among family members. Rather, women tend to view surnames as a public proclamation of their immediate family relationships. Men, on the other hand, usually experience constant surnames their entire lives. Therefore, a constant surname is intertwined with a man’s public self, and associated with a stable sense of self-identity. Men also consider the dissemination of their surname as essential to their immortality, and their dominion and power.

While most men and women bring to their children’s naming disputes these diverse orientations, the law repeatedly credits the male view and not the female view. The problem seems impervious to an equal protection challenge, nor remediable by a further extension of the custodial parent presumption. As a solution, the article proposes the “family association rule,” a standard which privileges the female perspective – that a name should symbolize present propinquity – over the problematic male perspective of individuality and dominion. The family association rule, a substantive rule of law, would require that the physical custodian’s surname be the child’s surname, unless the noncustodial parent proved by clear and convincing evidence that harm to the child would result. If the parents had joint physical custody and a dispute arose, the child’s name would be hyphenated, in alphabetical order, if desired by either parent, unless one parent was the de facto physical custodian. Any child who reached age twelve would have his or her surname preference govern, even if inconsistent with the above rule. The family association rule embraces alterity and connectedness, and rejects rigidity, dominion, and self-centeredness. It treats the custodial parent and her children as a family and respects them with a family label. It embeds in the law the relational qualities that women find important, and that all individuals should value.

Keywords: surnames, naming, law, children, feminist

JEL Classification: K36