If you are preparing any type of a parenting or custody agreement, I strongly suggest that you retain in the agreement language that no one else will be called mother or father, and that the child will not be known by any other surname but the surname that was given to the child at the time that you entered into the parenting agreement. We always include this in our agreements in at the DePalo Law firm.

  There was a very interesting recent case in Staten Island, Richmond County, by Judge Matthew B. Bloom where there was a petition filed to change the surname of a mother’s underage son from the surname of his biological father to the surname of her current husband over the biological father’s objections.  After hearing testimony from the parties, the family court found that based on the totality of the circumstances, the proposed name change was in the best interest of the child based on well-established precedent.

            However, the petitioner and child’s biological father had entered into a pre‑existing custody stipulation in 2011 that expressly prohibited either parent’s ability to change the surname.  Because the court that has made a child custody determination maintains exclusive continuing jurisdiction, the family court did not have the requisite jurisdiction to modify the pre‑existing custody stipulation and thus, could not grant the petitioner’s application for a name change. 

 This is very interesting because the court did not look at the application for the name change based on best interests. Instead, the court found that because there was that very specific stipulation in the prior custody order, (which based on the reading of the decision, was probably from a divorce judgment) the name could not be changed. The court saw it as a contract by the parties.  This was an interesting twist on a name change and something to be aware of if you ever enter into a custody or parenting agreement. The stipulstion trumped the child’s wishes and even best interest.  

 Make sure this provision is contained in your agreement if you want to ensure that your child’s name will not be changed.