Oregon Court of Appeals Reports
DOHERTY v. WIZNER, A127262 (Or.App. 12-27-2006) CHAD
DOHERTY, Respondent, v. CHRISTY WIZNER, Appellant. 04CV083;
A127262. Oregon Court of Appeals. Submitted on record and
briefs December 16, 2005. FILED: December 27, 2006.
Appeal from Circuit Court, Morrow County. Jeffrey M.
Wallace, Judge.
Dale L. Smith filed the brief for appellant.
Annetta L. Spicer filed the brief for respondent.
Before Wollheim, Presiding Judge, and Haselton, Judge, and
Harris, Judge pro tempore.
HARRIS, J. pro tempore.
Provision of judgment changing child’s name reversed;
otherwise affirmed.
HARRIS, J. pro tempore.
Christy Wizner (mother) appeals a judgment in a filiation
action filed by Chad Doherty (father) regarding a
six-week-old girl in mother’s custody. At issue in this
appeal is that aspect of the trial court’s judgment
granting father’s request to have the child’s last name
changed from mother’s last name to father’s last name.
Mother assigns error to that disposition on the ground that
the trial court applied the incorrect legal standard to the
name change ruling.[fn1] On de novo review, ORS 19.415(3),
we agree with mother. Accordingly, we reverse the
disposition of the name change, but otherwise affirm.
I. BACKGROUND
A child was born to mother and father on April 8, 2004. The
child’s birth certificate identified the child by mother’s
surname. Father filed this filiation action on May 18,
2004. During the pendency of the action, mother and father
were able to resolve issues concerning father’s paternity,
father’s support obligation, and father’s parenting time
and mother’s continued custody. The only remaining issue
before the trial court was father’s request to have the
child’s last name changed from mother’s last name to
father’s last name. On November 19, 2004, the court
conducted a hearing on the question of which surname the
child should be given. The following facts were established
at the hearing: (1) mother has had custody of the child
since the child’s birth; (2) the name “Wizner” is the
surname of mother’s former spouse; (3) mother is the
custodial parent of three children with her former spouse,
ages three, six, and eight at the time of the hearing; (4)
the other three children also use the surname Wizner; (5)
the parties have been following a parenting plan that
allows father weekly contact with the child; and (6) father
has been paying support for the child.
Both parties testified. Father testified that the infant
should have his last name “[b]ecause she has no blood of
Wizner in her. She is my child, our child, but I just grew
up that way.” Mother testified that “I just think it would
be a whole lot easier on the children * * * to keep the
same last name.”
After hearing the testimony of the parties, the court
acknowledged that it was not clear what “standard” should
be followed under the circumstances presented, but that it
seemed prudent to follow the custom of naming a child after
a parent the child is related to “by blood.” The court
reasoned that the child should have the name of the father
(Doherty) because the mother’s name (Wizner) is not a family
name that the child is related to by blood, and entered
judgment accordingly.
On appeal, mother asserts that the trial court did not
properly apply the “best interest of the child” standard to
the name change. Had it done so, mother argues, father’s
request would have been denied because it is in the child’s
best interest to have the surname of her mother and other
siblings. Conversely, father contends that Oregon law
requires that the trial court recognize the protected
interest of the father in having the child bear his
surname. We begin our discussion by briefly reviewing the
historical development of surnames in America.
II. ORIGIN AND HISTORY OF SURNAMES IN AMERICA
Many different naming systems exist throughout the
world.[fn2] The prevailing custom in most western
Anglo-Saxon based cultures is for one or both parents to
present a child with three names at birth: the first or
given name,[fn3] a middle name, and a last name or
surname.[fn4][fn5] The surname for children of married
parents is usually inherited from the father.[fn6] The
practice of using surnames in America finds its roots in
the traditions which developed after the Norman Conquest in
1066.[fn7] After the Conquest, old Saxon names were
gradually replaced with a limited number of Norman
names.[fn8] Over time, this resulted in many people using
the same names.[fn9] This development, along with growing
populations, created the need to take a second name so that
individuals could be separately identified.[fn10]
[fn12][fn13] Initially, surnames were drawn from a number
of sources and were not passed down from generation to
generation.[fn11] Over time, however, surnames became
hereditary and were used to facilitate the inheritance of
property.[fn12] The custom of passing the father’s surname
on to the children was further developed in response to
England’s legal system and social practices in which the
ownership and management of all marital property was vested
in the husband through what came to be called the doctrine
of coverture.[fn13] Under this doctrine, the wife’s legal
identity was subsumed in the husband’s. The husband had all
legal rights, duties, and powers with respect to the
children of the marriage and the children born of the
marriage were given the surname of their father. Lisa
Kelly, Divining the Deep and Inscrutable: Toward a
Gender-Neutral, Child-Centered Approach to Child Name
Change Proceedings, 99 W Va L Rev 1, 19-21 (1996).
When children were born to unmarried parents, different
customs were followed. This country adopted the practice
developed from the English common law which maintained that
a child born to unmarried parents was a child of no
one.[fn14] This usually meant that the state was required
to take responsibility for the care and custody of those
children. Governments eventually relieved themselves of
their support and custody obligations by declaring that
children born to unmarried parents were the children of the
mother.[fn15] Based on this practice, the child was either
given the surname of the mother or the mother was given the
right to name the child. Id. at 34-35, 46-47; Karen
Czapanskiy, Volunteers and Draftees: The Struggle for
Parental Equality, 38 UCLA L Rev 1415, 1423-24 (1991).
This country has followed the naming customs and practices
adopted from English common law and traditions until recent
times. Beginning in the latter half of the 20th century,
traditional naming practices, writes one commentator, were
recognized as “com[ing] into conflict with current
sensitivities about children’s and women’s rights.” Richard
H. Thornton, The Controversy Over Children’s Surnames:
Familial Autonomy, Equal Protection and the Child’s Best
Interests, 1979 Utah L Rev 303. Those changes accelerated a
shift away from the interests of the parents to a focus on
the best interests of the child. The law in this area
continues to evolve today mainly in the context of paternity
and custody actions.[fn16]
III. THE “BEST INTEREST OF THE CHILD” STANDARD
The “best interest of the child” standard has long been
looked to by the courts as a guide to resolving disputes
relating to children.[fn17] In this country, the best
interest standard has historically been used in most family
law cases involving children, including in disputes over
custody, adoption, and neglect.[fn18] In more recent times,
this standard has been applied by the courts to disputes
between parents over the name a child should use.[fn19] In
this state, the Oregon Supreme Court first applied this
standard to a naming dispute in the case of Ouellette v.
Ouellette, 245 Or 138, 420 P2d 631(1966), where the court
concluded that “the welfare of the children” was not
furthered by mother’s decision to informally alter the
spelling of the long-used paternal surname of the children.
Subsequently, the “welfare” or “best interest” of the child
standard[fn20] has been followed by this court in naming
dispute cases involving children, starting with the case of
Gleason v. Michlitsch, 82 Or App 688, 690 n 1, 728 P2d 965
(1986), where the court concluded that “[b]oth the statutes
governing filiation actions, * * * and the statutes
governing name changes, * * * suggest that [the best
interest of the child standard] is the correct standard.”
As previously stated by this court, to change a child’s
name, the party requesting the change bears the burden of
showing “that the change of name is in the child’s best
interest.” Tibbetts and Mueller, 183 Or App 379, 390, 52
P3d 1067, 1073 (2002); see also Aylsworth v. Adams, 85 Or
App 382, 736 P2d 225, rev den, 303 Or 700 (1987).
Over the years, the “best interest of the child” standard
has developed in this country through state courts and
legislatures towards a more gender-neutral and
child-centered inquiry. It is well established law today
that neither parent has a superior right in determining the
child’s last name.[fn21] The right to name a child is a
privilege belonging equally to both parents. Courts across
this country have set aside those naming practices of the
past that endorse presumptions and preferences that favor
one parent over another based upon marital status,[fn22]
gender,[fn23] or custodial designation,[fn24] because such
presumptions and preferences are not consistent with
determining the best interest of the child. These outdated
naming practices have been replaced with a requirement that
the court determine what is in a child’s best interest,
avoiding any interests not supported by the evidence or
founded on presumptions that favor one parent over another.
The inquiry, then, is to determine, from the facts given to
us by the record, what is in this child’s best interest.
There is no definitive list of factors to consider when
deciding what would be in the child’s best interest;
however, several jurisdictions, including Oregon, have
identified factors a court should consider — when
they exist and are appropriate in any given case —
in the process of deciding what surname will serve the best
interests of the child. These factors include the
following:
1. The identity and preference of the custodial parent.
Tibbetts, 183 Or App at 391; Gleason, 82 Or App at 691;
State ex rel Spence-Chapin Services v. Tedeno, 101 Misc 2d
485, 489, 421 NYS2d 297, 300 (NY Sup Ct 1979); see also
Merle H. Weiner, We Are Family: Valuing Associationalism In
Disputes Over Children’s Surnames, 75 NC L Rev 1625,
1742-52 (1997).
2. The avoidance of embarrassment, inconvenience or
confusion. Uri and Uri, 108 Or App 613, 615, 816 P2d 708
(1991); Pizziconi v. Yarbrough, 177 Ariz 422, 425, 868 P2d
1005, 1008 (1994); In re Marriage of Schiffman, 28 Cal 3d
at 647, 620 P2d at 923; Hamby v. Jacobson, 769 P2d 273, 277
(Utah Ct App 1989); see also Weiner, 75 NC L Rev at
1732-36.
3. Identification of the child as being part of a distinct
family unit. Tibbetts, 183 Or App at 391; Gleason, 82 Or
App at 691; In re Marriage of Schiffman, 28 Cal 3d at 647,
620 P2d at 923; In re Change of Name of Andrews, 235 Neb
170, 177, 454 NW2d 488, 492 (1990); Hamby, 769 P2d at 280.
4. The age of the child and the length of time the child
has used the surname. Tibbetts, 183 Or App at 391;
Aylsworth, 85 Or App at 385; In re Marriage of Schiffman,
28 Cal 3d at 647, 620 P2d at 922; In re Change of Name of
Andrews, 235 Neb at 177-78, 454 NW2d at 492-93; Hamby, 769
P2d at 279; Daves v. Nastos, 105 Wash 2d 24, 31, 711 P2d
314, 318 (1985).
5. The preference of the child. McArthur and Paradis, 201
Or App 530, 545, 120 P3d 904, 912 (2005); In re Petition of
Craig, 164 Ill App 3d 1090, 1091, 518 NE2d 728, 729 (1987);
Daves, 105 Wash 2d at 31, 711 P2d at 318; see also Beverly
S. Seng, Like Father, Like Child: The Rights of Parents in
Their Children’s Surnames, 70 Va L Rev 1303, 1351-54
(1984).[fn25]
6. The effect of a name change on the relationship between
the child and each parent. Uri, 108 Or App at 615;
Pizziconi, 177 Ariz at 425, 868 P2d at 1008; In re Marriage
of Schiffman, 28 Cal 3d at 647, 620 P2d at 922; In re
Change of Name of Andrews, 235 Neb at 177, 454 NW2d at 492;
Hamby, 769 P2d at 277, 279; Daves, 105 Wash 2d at 31, 711
P2d at 318.
7. Parental misconduct. Huffman v. Fisher, 337 Ark 58, 68,
987 SW2d 269, 274 (1999); In re Change of Name of Andrews,
235 Neb at 177, 454 NW2d at 492; Keegan v. Gudahl, 525 NW2d
695, 699 (SD 1994); Hamby, 769 P2d at 279. See Shannon J.
Kennedy-Sjodin, Note, Keegan v. Gudahl: The Child’s Surname
as a New Bargaining Chip in the Game of Divorce, 41 SD L
Rev 166, 188 (1996) (where parental misconduct is
distinguished from marital misconduct).
8. The level of support for and contact with the child.
Aylsworth, 85 Or App at 385; Statham v. Domyan, 153 Ill App
3d 1003, 1007, 506 NE2d 613, 616 (1987); In re Marriage of
Gulsvig, 498 NW2d 725, 729 (Iowa 1993); Keegan, 525 NW2d at
699.
9. The motivation of the parent seeking the name change or
the parent seeking to oppose it. Marriage of Presson, 102
Ill 2d 303, 465 NE2d 85 (1984); Aitkin v. Girard, 390 NW2d
906, 910 (Minn Ct App 1986); In re Grimes, 530 Pa 388,
394-95, 609 A2d 158, 161-62 (1992); see also Weiner, 75 NC
L Rev at 1729-32.
10. The community reputation associated with the names at
issue. D. R. S. v. R. S. H., 412 NE2d 1257, 1263 (Ind Ct
App 1980); In re Application of Saxton, 309 NW2d 298, 301
(Minn 1981); Hamby, 769 P2d at 279; Daves, 105 Wash 2d 24,
711 P2d 314.
11. Assurances of the custodial parent that she or he will
not change hers or his own surname or the child’s surname.
In re Marriage of Gulsvig, 498 NW2d at 730; In re
Stollings, 65 Ohio App 3d 183, 188, 583 NE2d 367, 370-71
(1989); Hamby, 769 P2d at 280.
12. Important ties to family heritage, ethnic identity, and
cultural values. O’Brien v. Tilson, 523 F Supp 494 (EDNC
1981); In re Robinson, 74 Misc 2d 63, 65, 344 NYS2d 147,
149 (NY Civ Ct 1972); In re Baldini, 17 Misc 2d 195, 195,
183 NYS2d 416, 417 (NY City Ct 1959); see Thornton, 1979
Utah L Rev at 304.
The factors listed above represent those factors most
commonly identified by courts when deciding if a proposed
name change is in the child’s best interest; there
certainly may be other factors relevant to this inquiry.
Father urges us here to consider as “one factor” the
father’s presumed right or “protected interest” in having
the child take his surname. Father asserts that he has a
legal right to require that the child use his surname,
unless mother can establish that it would not be in the
child’s best interest to give the child his name due to
father’s misconduct.[fn26]
In support of his argument, father relies on Ouellette.
That reliance is misplaced for two reasons. First, although
Ouellette referred to a father’s “protectible interest” in
the course of quoting from an ALR annotation, 245 Or at
142, the court did not expressly adopt the “protectible
interest” doctrine. Rather, the court’s holding emphasizes
the fact that the mother offered no evidence that the
children’s continued use of the father’s surname is
“contrary to the welfare of the children.” Id. (emphasis
added). The Ouellette case involved parents who were
married in 1950 and divorced in 1958. The mother was
awarded custody of the three children born during the
marriage. After the divorce, the mother and the children
continued to use the father’s surname until the mid-1960s,
when the mother informally changed the surname she used for
herself and the children from Ouellette to O’Let. At the
time the suit was filed, the children were ages 14, 13, and
9. The name the mother was trying to replace the children’s
surname with was not another family name but was a
different spelling of the surname used by the children. On
those facts, the Ouellette court concluded that “the
welfare of the children” was not furthered by the mother’s
decision to informally alter the children’s long-used
surname. The welfare of the child, as it always does in
cases of this nature, remained paramount.[fn27]
Second, we decline to read Ouellette as adopting a
“paternal presumption” given the broader statutory context
in which that case was decided. ORS 109.030 provides now,
as it did at the time Ouellette was decided, that “[t]he
rights and responsibilities of the parents, in the absence
of misconduct, are equal, and the mother is as fully
entitled to the custody and control of the children and
their earnings as the father.”[fn28] (Emphasis added.) In
the absence of explicit language adopting a preference in
favor of the father, and considering the existence of a
statute that appears to abrogate such preferences, we
decline to read Ouellette as granting superior naming
rights to the father.
Father’s insistence that we recognize a paternal preference
or presumption ignores a half-century of social change and
development of the law in our country. Since the 1960s, we
have witnessed significant changes in the form and function
of the traditional family unit. During this time, the
marriage rate has sharply declined, while the cohabitation
and divorce rates have significantly increased.[fn29] And
of particular relevance to this case, the percentage of
children born to unmarried parents has increased from 5
percent in 1960 to 37 percent in 2005.[fn30] These changes
have reshaped traditional customs and patterns regarding
family and the rearing of children, including the custom of
naming our children. In recognition of these changes, we
have adhered to an analysis based solely on the best
interest of the child standard — as articulated in
Gleason and, thereafter, in the cases that followed.[fn31]
The gender-based presumptions of the past should not apply
to this analysis because they take discretion away from the
court to consider the circumstances unique to each case and
to apply those factors relevant to a determination of what
would be in the child’s best interest. Application of the
paternal presumption, in effect, defeats the “best interest
of the child” standard. For this important reason, along
with those discussed herein, we hold that the best interest
of the child standard should be applied in this case, free
of any presumptions or preferences. IV. ANALYSIS
Assessing the factors relevant to this case, we first note
that mother is the custodial parent and will be the primary
care giver in the child’s life into the foreseeable future.
The court in Gleason concluded that “the identity of the
custodial parent is an important factor in determining the
relationship of the child’s best interests to the surname
it should bear.” 82 Or App at 691. As observed by the court
in Tibbetts, it is especially important to consider if the
child’s name “would be different from his primary custodial
parent’s name.” 183 Or App at 391. In both Gleason and
Tibbetts, the court quoted with approval this statement of
policy from a New York trial court:
“‘The significant consideration is that the mother has
custody and it is she who will be the primary caretaking
figure and who will make the major decisions for [the
child]. Moreover, the court recognizes that children, as
they grow older, generally prefer to use the name of the
parent with whom they live.'”
Gleason, 82 Or App at 691 (quoting State ex rel
Spence-Chapin Services, 101 Misc 2d at 489, 421 NYS2d at
300); Tibbetts, 183 Or App at 391. Consideration of the
identity and desire of the custodial parent is an important
factor in the process of addressing a request for a name
change. In this case, mother gave the child her surname at
birth. She explained to the court that she gave the child
her surname because it was the same surname that she and
her three other children used and that “I just think it
would be a whole lot easier on the children * * * to keep
the same last name.” Mother’s decision to give the child
her surname is rationally based and appears to have been
made in furtherance of the child’s best interest.
Second, it is foreseeable that giving the child her
father’s surname may lead to some confusion and possible
embarrassment to the child at those times when the child is
identified as having a different surname from the surname
used by her mother and three siblings. This might occur at
school and in other social settings, where the child would
have to explain why she has a name different from her
mother and siblings.[fn32]
Third, we consider the fact that the child is presently
part of a distinct family unit, with mother and her three
siblings. The surname they use is the surname all three of
the child’s siblings have used since their birth; it is the
surname used by the father and mother of the child’s
siblings. This surname serves as a symbolic connector and
foundation for this family unit.[fn33] As time goes on, the
child may be better able to identify herself as belonging
to this distinct family unit if her surname is the same as
her mother and three siblings.[fn34] As other courts have
acknowledged, a child’s use of the same surname as used by
the custodial parent and others living in the household may
promote in the child feelings of acceptance and
security.[fn35]
Fourth, because of the child’s young age (seven months at
the time of trial), she is not capable of identifying with
any given surname or indicating a reasonable preference for
one name over another.[fn36] Accordingly, those otherwise
important considerations offer no guidance in this case.
Fifth, we recognize that having a surname different from
the noncustodial father’s surname can have an impact on the
relationship that the noncustodial parent has with the
child. Historically, many courts would require children to
take the noncustodial father’s surname as a means of
maintaining a connection between father and child. We
recognize that, in many cases, a noncustodial parent does
not have the same opportunities, as the custodial parent
does, to strengthen an existing bond with the child.
Nevertheless, a noncustodial father’s insistence that the
child bear his name can, in the words of one commentator,
confuse “the child’s best interests with the father’s need
for a symbol * * *. The analysis would be clearer if courts
recognized that the father’s feelings are not equivalent to
the child’s interests.” Seng, 70 Va L Rev at 1339-40. In
the final analysis, development of a bond between father
and daughter will depend on the love and devotion that
father exhibits toward his daughter, not on whether the
child bears his name.[fn37]
Sixth, there is no evidence in the record that mother has
any plan to change the surnames of her children, either
through marriage or otherwise. It is reasonable to assume
that all four children of mother will share this surname
into the foreseeable future.
Finally, we consider the father’s expressed reason for
seeking this name change. Father asserts that his surname
is a name the child is related to “by blood,” while the
child has no ancestral family relation to mother’s surname.
In our country, a name has commonly served as a link to a
person’s family heritage and ethnic identity.[fn38] As one
court stated, “[p]ride of ancestry, parentage and succession
is deeply rooted in our society.” In re Robinson, 74 Misc
2d at 65, 344 NYS2d at 149. Positive benefits can accrue to
a child from a knowledge and awareness of the people and
cultures the child is related to. However, if the unstated
goal of father in giving his name to his daughter is to
develop in her an awareness of her roots and family
heritage, requiring that she use her father’s surname does
not, by itself, accomplish this important goal. Passing on
a surname, by itself, only identifies a child as being
connected to a limited number of ancestors,[fn39] unless
the name can be connected to a history, a culture, a family
heritage, or an ethnic identity that can give added meaning
and a sense of belonging to a child’s life. There is no
evidence in the record that father has made, or plans to
make, that connection.[fn40]
The most important and relevant factors from this analysis
are, first, the reasonable preference of the custodial
parent, and, second, the importance of avoiding any
confusion or embarrassment that could result from the child
using a surname different from that used by her custodial
parent and three siblings. We conclude on de novo review
that these considerations, when combined, establish that it
is in the best interest of the child that her surname
remain Wizner. Therefore, the decision of the trial court
to change the child’s surname from Wizner to Doherty is
reversed.
Provision of judgment changing child’s name reversed;
otherwise affirmed.
[fn1] Father argues that, pursuant to ORAP 5.45, mother
failed to preserve the error at trial. A review of the
transcript reveals that mother “clearly raise[d] the issue
in closing argument” and, therefore, we do not agree that
there is an issue of preservation in this case. State v.
Forrester, 203 Or App 151, 155, 125 P3d 47 (2005).
[fn2] Most cultures outside the western world do not have a
practice of using surnames. Lisa Kelly, Divining the Deep
and Inscrutable: Toward a Gender-Neutral, Child-Centered
Approach to Child Name Change Proceedings, 99 W Va L Rev 1,
7-9 (1996). Those people in other cultures who use a second
name do not follow the custom generally practiced by people
in this country. Id.; see also J. N. Hook, Ph.D., Family
Names: How Our Surnames Came To America 74-320 (1982).
[fn3] The “given name” has also historically been referred
to as the forename or Christian name. Kelly, 99 W Va L Rev
at 9, drawing from Elsdon C. Smith, The Story of Our
Surnames 1 (1970).
[fn4] Middle names were not used in early colonial America.
Kelly, 99 W Va L Rev at 9 n 22. The practice of giving a
child a middle name has developed over time as the need to
separately identify individuals has increased and as a
means of connecting children with their family heritage.
Id.
[fn5] The term “surname” comes from the medieval French word
“surnom,” which means “above or over name.” Yvonne M.
Cherena Pacheco, Latino Surnames: Formal and Informal
Forces in the United States Affecting the Retention and Use
of the Maternal Surname, 18 T Marshall L Rev 1 (1992). The
surname was initially used to distinguish people with the
same first name. Id.
[fn6] Kelly, 99 W Va L Rev at 10; see id. at 10 n 25 (The
custom of taking the father’s surname assumes that the
child is born to parents in a “state-sanctioned marriage.”
The custom is different for children born to unmarried
parents.).
[fn7] On October 14, 1066, the Normans from northern France
defeated the Anglo-Saxon army in England at the Battle of
Hastings. Thereafter, Norman customs and culture dominated
all phases of English life. William Dodgson Bowman, The
Story of Surnames (1931); see also H. R. Loyn, The Norman
Conquest 171-195 (1965).
[fn8] See William F. Lanahan, What’s in a Name?: Family
Surnames and Social Upheaval in Medieval England, 65 Social
Studies 218 (1974) (A review of the social forces that
influenced the use of surnames.).
[fn9] During this time, the majority of males were given the
name Robert, Richard, William, John, or Henry. For females,
the choices were even more limited. Kelly, 99 W Va L Rev at
10; see also Richard H. Thornton, The Controversy Over
Children’s Surnames: Familial Autonomy, Equal Protection
and the Child’s Best Interests, 1979 Utah L Rev 303, 305;
M. T. Clanchy, England and Its Rulers: 1066-1273 57 (1983).
[fn10] See Hook, Family Names: How Our Surnames Came To
America at 12 (Distinctions needed to be made when two
people were trying to identify a person with a common name,
like John. “So qualifications were added, as in imaginary
bits of conversations like these: `A horse stepped on
John’s foot.’ `John from the hill?’ `No. John of the dale.’
`John the son of William?’ `No. John the son of Robert.’
`John the smith?’ `No. John the tailor.’ `John the long?’
`No. John the bald.'”); see also Shannon J. Kennedy-Sjodin,
Note, Keegan v. Gudahl: The Child’s Surname as a New
Bargaining Chip in the Game of Divorce, 41 SD L Rev 166,
174-75 (1996).
[fn11] Most surnames were drawn from places (Hill),
occupations (Brewer), physical descriptions (Little), moral
characteristics (Good), and relationships or patronyms
(Williamson). Kelly, 99 W Va L Rev at 10. Initially, people
in the same family would commonly have different surnames.
Id. at 11; Pacheco, 18 T Marshall L Rev at 6.
[fn12] The custom of using a “hereditary paternal surname”
finds its origins in the feudal land tenure and
primogeniture systems imposed by the Normans. Beverly S.
Seng, Like Father, Like Child: The Rights of Parents in
Their Children’s Surnames, 70 Va L Rev 1303, 1324 (1984).
The practice of passing a surname on to the next generation
was first used by those who owned land. Id. at 1325. By the
14th century, surnames commonly served as hereditary family
names, essentially because inheritance of property was in
most cases contingent upon an heir using the surname
associated with family property. Thornton, 1979 Utah L Rev
at 305. Eventually, surnames became hereditary among those
who did not own land due principally to government edict.
Id. at 305-06 (Henry VIII, for example, “required a record
to be kept in every parish of the births, marriages, and
deaths of the parish inhabitants, with legitimate births
generally being recorded in the name of the father.” Family
members were encouraged to identify themselves with the
father’s surname when recording their names.).
[fn13] See Gubernat v. Deremer, 140 NJ 120, 132, 657 A2d
856, 863 (1995) (“A woman as soon as she is married, is
called covert * * * that is, `veiled’; as it were, clouded
and overshadowed.” (internal quotation marks omitted;
emphasis in original)).
[fn14] “At common law, an illegitimate child was filius
nullius, the son of no one, or filius populi, the son of
the people.” D. R. S. v. R. S. H., 412 NE2d 1257, 1261 (Ind
Ct App 1980). By custom, the child did not receive the
surname of a parent but received a surname based upon
factors other than lineage — usually reputation.
Thornton, 1979 Utah L Rev at 312.
[fn15] Custody of the child born to unmarried parents was
awarded to the mother, either by court edict or by
legislation, consistent with “her duty to support him, as
his natural guardian.” Secretary of Commonwealth v. City
Clerk of Lowell, 373 Mass 178, 191, 366 NE2d 717, 726
(1977); see also Wright v. Wright, 2 Mass 109, 110 (1806)
(“In legal contemplation, [an illegitimate child] is
generally considered as the relative of no one. But, to
provide for his support and education, the mother has a
right to the custody and control of him, and is bound to
maintain him, as his natural guardian.”).
[fn16] Joanna Grossman, Whose Surname Should a Child Have,
FindLaw’s Writ column (Aug 12, 2003),
http://writ.news.findlaw.com/grossman/20030812.html (last
visited Dec 7, 2006).
[fn17] See Michael Grossberg, Governing the Hearth: Law and
the Family in Nineteenth Century America 209-210, 237-242
(1985) (The roots of this standard can be traced to the
1800s when courts began looking to the welfare of the child
in initial custody disputes between parents.).
[fn18] Merle H. Weiner, We Are Family: Valuing
Associationalism in Disputes Over Children’s Surnames, 75
NC L Rev 1625, 1709-1714 (1997).
[fn19] See, e.g., In re Marriage of Schiffman, 28 Cal 3d
640, 620 P2d 579 (1980); D. R. S., 412 NE2d at 1263; In re
Application of Saxton, 309 NW2d 298, 301 (Minn 1981); Daves
v. Nastos, 105 Wash 2d 24, 30, 711 P2d 314, 318 (1985).
[fn20] In more recent times, the “welfare of the child”
standard used in Ouellette has been referred to by courts
as the “best interest of the child” standard because that
is the language adopted by the state legislature over the
last 25 years when referring to the statutory standard that
applies in family and juvenile matters involving children
(ORS chapters 107 and 109 regarding custody, parenting time,
and adoption; chapters 418 and 419B involving child welfare
services and child dependency proceedings).
[fn21] Pizziconi v. Yarbrough, 177 Ariz 422, 868 P2d 1005
(1994); In re Marriage of Schiffman, 28 Cal 3d at 645, 620
P2d at 921; In re Marriage of McManamy, 14 Cal App 4th 607,
18 Cal Rptr 2d 216 (1993); In re Marriage of Gulsvig, 498
NW2d 725, 729 (Iowa 1993); Montgomery v. Wells, 708 NW2d
704, 708 (Iowa App 2005); Lassiter-Geers v. Reichenbach,
303 Md 88, 94, 492 A2d 303, 306 (1985); In re Application
of Saxton, 309 NW2d at 302; Cobb v. Cobb, 844 SW2d 7, 9 (Mo
Ct App 1992); Kirksey v. Abbott, 591 SW2d 751, 752 (Mo Ct
App 1979); In re Change of Name of Andrews, 235 Neb 170,
174-75, 454 NW2d 488, 491 (1990); Magiera v. Luera, 106 Nev
775, 777, 802 P2d 6, 7 (Nev 1990); Gubernat, 140 NJ at 141,
657 A2d at 867; State ex rel Spence-Chapin Services v.
Tedeno, 101 Misc 2d 485, 421 NYS2d 297 (NY Sup Ct 1979);
Bobo v. Jewell, 38 Ohio St 3d 330, 334, 528 NE2d 180, 184-85
(1988); Ribeiro v. Monahan, 524 A2d 586 (RI 1987); Keegan
v. Gudahl, 525 NW2d 695 (SD 1994); Hamby v. Jacobson, 769
P2d 273 (Utah Ct App 1989); In re Wilson, 162 Vt 281, 648
A2d 648 (1994); Daves, 105 Wash 2d at 31, 711 P2d at 318;
In re Harris, 160 W Va 422, 236 SE2d 426, 430 (1977).
[fn22] In 1972, the United States Supreme Court found that
treating fathers of nonmarital children differently from
their mothers in dependency cases was a violation of the
equal protection clause of the Fourteenth Amendment.
Stanley v. Illinois, 405 US 645, 649-58, 92 S Ct 1208, 31 L
Ed 2d 551 (1972); see Roe v. Conn, 417 F Supp 769, 782-83
(MD Ala 1976) (the equal protection clause requires that
both parents be given an equal voice in the decision to
name a child); see also Note, Whose Interest is Controlling
in the Name Change of Minors — the Father’s, the
Mother’s or the Child’s?, 18 Ariz L Rev 725 (1976) (where
the commentator reviews the gradual shift away from all
distinctions based upon the marital status of the parents
principally as a result of equal protection guarantees).
[fn23] Gender based presumptions, such as the tender years
doctrine for mothers or the protected interest doctrine for
fathers, in the words of the New Jersey Supreme Court,
“have been replaced by an inquiry focused on the happiness
and welfare of the child.” Gubernat, 140 NJ at 139, 657 A2d
at 866; see Hamby, 769 P2d at 277 (summarizing the decision
in In re Marriage of Schiffman where the California Supreme
Court noted that “the long-standing rule in custody
disputes that the mother is the preferred custodian of
young children had been abolished in order to equalize the
rights of parents. Similarly, laws have been promulgated to
eliminate legal distinctions between legitimate and
illegitimate children.”); see also Seng, 70 Va L Rev at
1316.
[fn24] Some states have adopted a rebuttable custodial
presumption, which maintains that the parent with custody
is presumed to act in the best interest of the child in
selecting the child’s name. See, e.g., Gubernat, 140 NJ at
144, 657 A2d at 869 (“[W]e adopt a strong presumption in
favor of the surname chosen by the custodial parent.”); see
also Weiner, 75 NC L Rev at 1742-52 (where the author
discusses the strengths and weaknesses of a custodial
presumption). Other states, most notably California, have
rejected adoption of a custodial presumption. See In re
Marriage of Schiffman, 28 Cal 3d at 645, 620 P2d at 921
(majority opinion refused to adopt this presumption); see
also Hamby, 769 P2d at 277 (where a Utah appellate court
concluded that “we are unwilling to adopt a presumption in
favor of the choice of the custodial parent, finding that
the best interests of the child test can appropriately
include consideration of the custodial situation of the
child, as well as other relevant factors”); Cohee v. Cohee,
210 Neb 855, 861, 317 NW2d 381, 384 (1982) (the Nebraska
Supreme Court refused to adopt a custodial parent
presumption); In re Wilson, 162 Vt at 284, 648 A2d at 650
(the Vermont Supreme Court chose not to apply a custodial
presumption).
We choose not to adopt a custodial presumption. We take
this position because such a presumption is inconsistent
with determining the best interest of the child after
considering all the circumstances in each case. The
custodial parent’s preference should be considered as one
factor along with all other relevant factors in determining
what name would be in the child’s best interest. This
approach gives the court more flexibility in the process of
applying the best interest standard.
[fn25] ORS 33.430(3) acknowledges the importance of
considering the child’s preference regarding a proposed
name change.
[fn26] See Cynthia Blevins Doll, Note, Harmonizing Filial
and Parental Rights in Names: Progress, Pitfalls, and
Constitutional Problems, 35 How LJ 227, 233 (1992) (The
“protected interest” doctrine provides that the father of a
child has a protectible interest or presumed right in
having the child bear his surname, even though the mother
has been awarded custody of the child. Further, under this
doctrine, “the only time a father could `forfeit’ his right
to perpetuate his surname was through some misconduct
towards the child, such as willful abandonment.”); see also
53 ALR 2d 914 (1957).
[fn27] Nothing in Ouellette suggests that, had a name change
been in the best interest of the children, a “paternal
presumption” would have somehow defeated the change.
[fn28] See also Bryant v. Dukehart, 106 Or 359, 370-71, 210
P 454 (1922) (“In this state the common-law rule, that the
rights of the father to the custody and control of the
minor children are superior to those of the mother, is
abrogated by statute. * * * [T]he rights of the parents to
the custody and control of the minor children of the
marriage are equal.”).
[fn29] Between 1970 and 1998, the number of marriages per
1,000 people per year in the United States declined from
10.6 to 8.3. US Census Bureau, Statistical Abstract of the
United States: 2001 87; table No. 117,
http://www.census.gov/prod/2002pubs/01statab/vitstat.pdf;
The National Marriage Project, The State of Our Unions,
2003: The Social Health of Marriage in America,
http://marriage.rutgers.edu/Publications/SOOU/SOOU2003.pdf.
Since 1960, there has been an approximate 1,000 percent
increase in unmarried couples living together. US Census
Bureau, Unmarried-Couple Households, by Presence of
Children: 1960 to Present (2006),
http://www.census.gov/populations/socdemo/hh-fam/uc1.pdf.
Since 1996, experts projected that one-half of the women
then living in the United States would dissolve a marriage
during their lifetime. Rose M. Kreider and Jason M. Fields,
US Census Bureau, Number, Timing, and Duration of Marriages
and Divorces: 1996 (2002),
http://www.census.gov/prod/2002pubs/p70-80.pdf.
[fn30] Brady E. Hamilton, Joyce A. Martin, and Stephanie J.
Ventura, National Center for Health Statistics, Births:
http://www.cdc.gov/nchs/data/hestat/prelimbirths05_tables.p
Preliminary Data for 2005 (Nov 21, 2006), Table 3, df#3.
Stephanie J. Ventura, National Vital Statistics Reports, Vol
48, No 16 (Oct 18, 2000) Nonmarital Childbearing in the
United States, 1940-99, Table 1,
http://www.cdc.gov/nchs/data/nvsr/nvsr48/nvs48_16.pdf.
[fn31] Tibbetts, 183 Or App 379; Aylsworth, 85 Or App 382;
McArthur, 201 Or App at 545.
[fn32] See Weiner, 75 NC L Rev at 1734-35; see also Aitkin,
390 NW2d at 909; Magiera, 106 Nev at 778, 802 P2d at 8 (The
court found that the child born to unmarried parents may
experience “confusion about her identity, difficulties in
school and society, and embarrassment among friends” if she
was required to use a name different from her custodial
mother.); Harold H. Bloomfield, Making Peace for Your
Stepfamily 75 (1993) (Children in blended families who keep
the noncustodial father’s name “often feel embarrassed,
particularly at school * * * where the difference becomes
conspicuous. The child suddenly finds himself or herself
having to explain why he or she has a different name than
his or her own mother.”).
[fn33] We are not addressing here the common modern
occurrence of children being given the surname of one
parent when the parents, though living together, choose to
maintain different surnames.
[fn34] As we have stated before, “children, as they grow
older, generally prefer to use the name of the parent with
whom they live.” Tibbetts, 183 Or App at 391 (quoting State
ex rel Spence-Chapin Services, 101 Misc 2d at 489, 421
NYS2d at 300).
[fn35] See Doe v. Dunning, 87 Wash 2d 50, 54, 549 P2d 1, 3
(1976) (The function and use of a surname to identify
children as being part of a distinct social and economic
unit is not served by giving father’s surname to a child
who does not live in father’s household.).
[fn36] See In re Change of Name of Andrews, 235 Neb at
171-72, 178, 454 NW2d at 489 (The children in this case
were 25-month-old twins at the time of trial. The court
relied on expert testimony in the record in concluding that
two-year-old children “are too young to identify with a
specific surname.”); Hamby, 769 P2d at 279 (This case
involved children aged 28 months and 6 months. The
appellate court did not disturb the trial court’s finding
that the children were “too young to be accustomed to the
surname” they had been using.); In re Marriage of
Schiffman, 28 Cal 3d at 647, 620 P2d at 922 (The court
observed that “the length of time that the child has used
the surname is to be considered. If, as here, the time is
negligible because the child is very young, other facts may
be controlling.”).
[fn37] See In re Marriage of McManamy, 14 Cal App 4th at
611, 18 Cal Rptr 2d 218 (the child’s understanding of the
role of her father in her life “will not be based solely on
her surname, but will develop in light of his conduct and
attitudes, particularly his active involvement in her
life.”); see also Gubernat, 140 NJ at 147, 657 A2d at 870
(“The love of the parent, and not the name of the parent,
is the `cohesive that binds parent and child and, further,
gives unique strength and durability to the natural loyalty
that the parent holds for the child.'” (quoting M. H. B. v.
H. T. B., 100 NJ 567, 574, 498 A2d 775 (1985))).
The record in this case reflects the fact that father has
supported his daughter and has shown an interest in
maintaining a relationship with her. Father filed this
action within six weeks of the child’s birth, he has
maintained regular contact with the child, and he has paid
child support. These facts show that father is very
interested in establishing and maintaining a strong bond
with his daughter. The surname the child uses is incidental
to this process.
[fn38] See Catherine A. Ritterbusch, Comment, In the Name of
the Father: Wisconsin’s Antiquated Approach to Child Name
Changes in Post-Divorce and Paternity Proceedings, 83 Marq
L Rev 279, 281 (1999) (“A child’s name often represents his
or her family identity; surnames can reflect cultural,
ethnic, religious, familial or other societal and personal
values.”); see also Laura Anne Foggar, Parents’ Selection of
Children’s Surnames, 51 Geo Wash L Rev 583, 587 (1983)
(“Names and naming practices originate in the languages and
cultures of the varied heritages of America’s citizenry.”).
[fn39] In fact, use of a father’s surname alone will connect
the child only to those ancestors who have used that
surname, which is less than one-half of one percent of a
person’s direct relatives. One scholar offers this
analysis: “Suppose the last name you were given at birth
happened to be around ten generations ago * * *. If you went
back to the tenth generation preceding your birth, you
great-great-great-great-great-great-great-great-grandparent
would have 1,024 s. Only one * * * among that gang of
1,024 would bear the patronym [paternal surname] that was
passed on to you. If you were to add up all your direct
ancestors * * * back to that tenth generation, you would
come up with 2,046 people. Of those 2,046 people, only ten
of them bore (and passed on) this patronym.” Weiner, 75 NC
L Rev at 1658 (quoting Sharon Lebell, Naming Ourselves,
Naming Our Children: Resolving The Last Name Dilemma 19-20
(1988)).
[fn40] And even if father had been successful in making that
connection, it must be acknowledged here that father’s hope
of informing this child of his family history through use
of his surname ignores the mother’s family history. The
custom of children using the father’s surname has for
centuries disregarded, in the words of one commentator, “a
mother’s pride in her own ancestry and her desire to have
her children perpetuate her name.” Seng, 70 Va L Rev at
1329.