Court of Appeal:
Mother’s Desire to Change Name of Child Over Father’s Objection Justified Order
Her Statement That She Wanted Child ‘to Also Have My Name’
Was Substantial Evidence of Benefit to Child—Opinion
By a MetNews Staff Writer
The Sixth District Court of Appeal has affirmed an order changing a child’s last name from that of the father to include the surnames of both parents, hyphenated, spurning the father’s protest that the mother has put forth no cognizable reason why an alteration of the birth certificate would be in the child’s best interests.
Undisputed was that the appropriate inquiry on appeal from a disputed order changing or not changing a minor’s name is whether substantial evidence supports a child’s-best-interest determination by the trial court. The California Supreme Court proclaimed in its 1980 decision in Marriage of Schiffman that “as in custody disputes, quarrels concerning a child’s surname should be decided according to the best interests of the child.”
That case repudiated the common law presumption that the child’s surname would be that of the father.
At issue in the case decided on Thursday by the Sixth District was whether substantial evidence supports the determination by Santa Clara Superior Court Judge Thomas E. Kuhnle that the surname of a toddler should be changed from “Israel” to “Rees-Israel.” The opinion by Justice Daniel H. Bromberg, which was not certified for publication, affirms Kuhnle’s order, declaring that the mother’s statement in support of the request that she wanted the child “to also have my name” constituted substantial evidence.
Born in 2019
The child was born in April of 2019. The parents were and are unmarried.
On Feb. 1, 2020, a month after breaking up with the father, the mother filed a petition to determine parental relationship. On July 13, 2021, she added a request that the boy’s name be changed to include hers, explaining:
“Father and I were never married. We had great plans for the future and as a result I did not think of adding my name to the birth certificate. The plans did not work out and I would like [the child] to also have my name. [The child] is only 2 years old; he does not go to school yet and there will be no adjustment for he does not know what his last name is yet.”
In September 2021, a hearing was held on that request. The parents testified; no other witnesses were called; no court reporter was present.
Kuhnle on Oct. 25, 2021, granted the request by an order that set forth no reasons.
The father prepared a settled statement to which the mother posed no objection. The judge approved it after making only one change: where, in reciting Israel’s testimony, it said that the mother “has not provided any valid reasons why a name change would be in” the child’s best interests, Kuhnle added, at the outset of the sentence, the words, “I argued that.”
The summary of the mother’s testimony was that she and the father “had big plans for the future” precluding any thought on her part to give the child’s a hyphenated name and that the father “has a good and large family,” commenting:
“He is lucky. I don’t have much family.”
The settled statement tells of the father’s testimony and contentions as being that he and the mother had “mutually agreed” as to the child’s “first, middle and last name”; that the name has (without telling why) “a special meaning to each of us, for specific reasons that should not be devalued or disregarded by changing our child’s name”; and that the child “does know his first, middle and last name” as reflected by a video of him reciting them.
It recounts the father arguing at the hearing that changing the name “would be confusing” to the child; that “[l]iving in two different homes will already make” the child “different from a lot of children his age”; and that “[c]hanging his name so that he has four names including a hyphenated last name would make him feel even more different.”
No Express Finding
In his brief on appeal, Israel argued that Kuhnle’s order must be reversed because the judge failed to make the requisite finding that the name-change was in the child’s best interest. Rees countered in her brief:
“It is for Father to complain that the Court failed to set forth the factors it considered in determining whether Mother’s requested name change was in [the child]’s best interest. Father could have requested a statement of decision, but he chose not to do so.”
The father countered in the reply brief:
“Even assuming that the failure to request a statement of decision evokes the doctrine of implied findings, affirmance is not warranted if such ‘implied findings’ are not supported by substantial evidence.”
The mother did not set forth reasons in her brief for the name-change. She set forth:
“In this instance, Mother requested that her surname be added as part of Kolby’s last name because she believed it was in Kolby’s best interest to have the names of both parents included as his surname. The trial court could reasonably conclude that it was in Kolby’s best interest to have a last name that included Mother’s last name.”
She later said, to like effect:
“In the present instance, Mother requested only that each parent’s surname be included as Kolby’s last name. The Trial Judge could reasonably have concluded that it was in the son’s best interest to have both parents’ names included as the child’s last name.”
Bromberg, who joined the Sixth District in January, wrote:
“[U]nder the doctrine of implied findings, the trial court must be assumed to have made all factual findings needed to support its order….Thus, we must assume that the trial court implicitly found that the name change was in Minor’s best interest.”
Addressing whether substantial evidence supports the implied finding, he said:
“In requesting that her surname be added to Father’s, Mother stated that she wanted Minor ‘to also have my name.’ ”
He quoted Schiffman as saying that “ ‘the maternal surname might play a significant role in supporting the mother-child relationship...where the custodial mother goes by her birth-given surname,’ ” adding, with additional quotes from that opinion:
“For example, including Mother’s surname in Minor’s surname will help his ‘future friends, neighbors, teachers, acquaintances, and family...associate’ Mother with him….In addition, including Mother’s surname in Minor’s may avoid confusion or minimize delay when she picks him up from school, camp, a care provider, or any number of activities that require demonstration of a familial relationship.”
Bromberg added that “while not extensive, Mother’s testimony satisfies the substantial evidence standard.”
The case is M.R. v. B.I, H049624.
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