In the last month, two separate panels of the New Jersey Appellate Division have issued conflicting rulings on the issue of who chooses the last name of your child after a divorce.

This week, one panel of appellate judges chose to apply what is called the “best interests of the child standard” but stated that there was a “strong presumption” that the custodial parent’s choice is in the best interests of the child.  This panel applied standards set for custody disputes involving parents who were never married to cases where the parents were married.  Although the custodial parent’s preference does not alone decide the issue, it is clear that this particular court would grant to the custodial parent a high level of control.  Other factors that the court would look at include the length of time the child used one surname, the identification of the child as a member of a family unit, the potential anxiety or embarrassment the child might experience if the child bears a surname different from the custodial parent and any preference the child expresses if sufficiently mature.

On January 20, 2012, another panel of the Appellate Division reached the opposite result, finding that in cases where the parents were married and had jointly chosen their child’s name when the child was born, the presumption in favor of the custodial parent after divorce does not apply.

While inconsistent results like this are rare, they do happen.  There is a very good chance that the Supreme Court of New Jersey will ultimately have to resolve this issue. This previously dormant issue of the child’s last name is now something that parents should consider during their divorce proceedings.

Contact a New Jersey Child Custody Attorney

If you have questions regarding child custody or divorce, contact Cherry Hill family law attorneys at Morgenstern & Rochester today.