MAGIERA V. LUERA: REEXAMINATION OF CHILDREN’S SURNAMES IN PATERNITY CASES
Bruce I. Shapiro, Las Vegas, Nevada
14 Nevada Family Law Report 1 (Winter, 1999)
Reprinted with permission of the State Bar of Nevada
I INTRODUCTION
In Magiera v. Luera,1 the Nevada Supreme Court concluded that a father is not entitled to have an out-of-wedlock child bear his surname merely and solely so that he may receive a “tangible benefit” for paying his child support.2 Magiera involved a child born to unwed parents. The father acknowledged paternity and signed the child’s birth certificate. The surname of the child, according to the birth certificate, reflected that of the mother. Following his acknowledgment of paternity, the father failed to stay current in his child support obligation and he did not seek visitation rights with the child until the child was three years old. When he was subsequently required to pay an increased child support obligation and to make payments on child support arrears, the father requested that the child’s surname be change to his.3
When addressing the matter, the Nevada Supreme Court noted that under NRS 125B.020,4 a father has a duty to support his child. The court ruled, however, that a father is entitled to “no tangible benefit” for fulfilling his responsibility to pay child support, and that “[t]he father has no greater right than the mother to have a child bear his surname.5 The court also held that “the burden is on the party seeking the name change to prove, by clear and convincing evidence, that the substantial welfare of the child necessitates a name change.”6 The presumption and burden that the Nevada Supreme Court thus created, however, are troublesome. The decision creates a presumption that an out-of-wedlock child should bear the surname of the mother and creates a virtually impossible burden for a father to overcome.
Several years ago, an appeal was taken to the Nevada Supreme Court from a district court order that included this issue. The appellant, “Mother,” and respondent, “Father,”7 met while co-workers at a business in Las Vegas, Nevada. While Mother was married to another man, Mother and Father had a brief relationship that resulted in the birth of a child. Father believed that he was the biological father of the child, but Mother repeatedly denied Father’s paternity and claimed that her husband was the child’s biological father.
To maintain a relationship with the child after the parties’ relationship ended, Father was forced to file a petition to establish paternity. Mother opposed the petition and counterclaimed that since she was married at the time of conception, her husband should be presumed to be the biological father. Mother also alleged that even if Father was the biological father of the child, he was unfit to have custody of the child because, among other unsubstantiated factors, he allegedly had a violent temper.
Over Mother’s vigorous objections, Mother and Father were ordered to submit to genetic testing and the testing confirmed that Father was indeed the biological father of the child. The parties were then referred to the Family Mediation and Assessment Center for a full study. The study recommended that Father should have specific visitation with the child. Mother nevertheless persisted in her position that Father should have no contact with the child.
During the pendency of the action, Mother and her husband were divorced and Mother married man, who will hereinafter be called “Husband Number Two.” The child’s surname then became a major issue in the proceedings because Mother decided to give the child the surname of Husband Number Two. Mother did so without regard for the fact that she was not married to Husband Number Two at the time that the child was conceived, and without regard for the fact that Husband Number Two was not the child’s biological father. When Father responded by requesting that the child bear his surname name, the district court, in an unusual compromise, ordered the child’s name to be hyphenated to reflect both, the surname of Father, and the surname of Husband Number Two. Mother was ordered to cooperate in obtaining a new birth certificate that would reflect the child’s new name and show that Father was the child’s father. The court’s order also gave Father unsupervised visitation the child. Mother reacted by making it clear that she had no intention of changing the child’s name or of allowing Father unsupervised visitation. Mother appealed.
In pursuing her appeal, Mother failed to include the trial transcript in the record on appeal. Despite this, the Nevada Supreme Court, in an unpublished decision, reversed the district court order changing the child’s surname, and opined that there was no “clear and compelling evidence in the record to show that the substantial welfare of the child necessitates the name change.”
II. APPLICATION OF MAGIERA
As noted above, the Nevada Supreme Court, in Magiera, held that the father of a child born out of wedlock, “has no greater right than the mother to have a child bear his surname.”8 If the father has no greater right than the mother to have the child bear his surname, however, it should therefore conversely follow that a mother has no greater right than the father to have a child bear her surname. Magiera should not be interpreted as holding that the mother is always entitled to have the child bear her surname. This argument aside, should not a father have a right to not have his child bear the surname of another man?
In Magiera the Nevada Supreme Court stated that the only relevant factor in determining the surname of a child is what is in the child’s best interest.9 The court also stated that the party attempting to change the child’s name must “prove by clear and compelling evidence that the substantial welfare of the child necessitates a name change.”10 Since the mother is usually able to name a child born out-of-wedlock, the father will usually be in the position of seeking the name change and of having to meet the almost insurmountable burden of showing that the change is in the child’s best interest.
Magiera should not be interpreted as creating a presumption that a child will bear the name that the mother is unilaterally free to give the child at birth. Why should fathers always have the burden of proving by clear and compelling evidence that their child should bear their surname? While this standard may have been fair under the facts in Magiera, where the father waited three years before initiating any action, failed to pay child support, and did not even exercise visitation with the child, it is not fair under many other circumstances, including the facts in the case described above.
In the above case, the father waited only two weeks after the birth of the child before filing his petition to establish paternity. It is not equitable for the Magiera standard to be applied after only two weeks. What is the court to look at in determining what is in the best interest of a child that is only two weeks old?
III. DISCUSSION
The naming a child is one of the first and most important decisions parents make. A child’s name reflects tradition and heritage.11 The trial court has jurisdiction to decide this issue pursuant to NRS 125.480.12 In fact, until recently, it was assumed as a matter of common understanding that children would bear their father’s surname and this assumption was rarely contested.13
Courts in other jurisdictions have set forth many factors to be considered in determining a child’s surname. Especially important among these factors is the length of time that the child has used a surname. If the child has used the surname for a negligible period, “other factors may be controlling.”14 Besides the length of time that a child has used a particular name, courts have also considered such factors as how the child’s surname will affect the child’s identity as a member of a household, how the child’s surname will affect the child’s relationship with each parent, what potential anxiety or embarrassment the child may experience if the child bears a different surname from the custodial parent, what preference the child may have regarding his surname, whether there was misconduct by one of the parents, failure to support the child, failure to maintain contact with the child, whether there were siblings of the child and whether the father attempted to influence or negotiate the child’s name at birth.15 The courts, however, have also acknowledged the difficulty of applying the best interest of the child standard to this issue.16
Some courts have held that the “presumption that the parent who exercises physical custody or sole legal custody should determine the surname of the child is firmly grounded in the judicial and legislative recognition that the custodial parent will act in the best interest of the child.”17 Some courts have found that if a name is important to the strengthening of the father-child relationship, it is just as important to the strengthening of the mother-child relationship.18 This, however, fails to recognize that a father-child relationship may be “even more tenuous in the case of an unwed father who has never lived with his child and thus has lacked the opportunity to discharge his parental responsibilities on a day-to-day . . . Hence, society’s interest in sustaining the custom of having the child bear the paternal surname is particularly urgent when the situation involves a child born out of wedlock.”19 Many of the cases that presented this issue to the courts, however, involved circumstances like those in Magiera, where the father’s conduct was egregious and unsympathetic.20
In a case involving an infant child, it cannot be reasonably argued that it is contrary to the child’s best interest for the child to have the surname of either party. The district court, in hyphenating the child’s name, was merely exercising its equitable powers to reach a compromise that it believed was in the best interest of the child and both parties. There is authority that if both parents have custody and cannot agree on a surname, the child should be given a hyphenated surname based on alphabetical order.21
Magiera may be distinguished from many cases. In Magiera, the child was three years old and, to some extent, already had an identity. The father waited three years and suddenly, without any apparent reason, wanted the child to bear his surname. In the case described above, however, Mother was married to one husband when she had an affair with Father and gave birth to the child at issue. Mother was subsequently divorce from her first husband and married Husband Number Two. She then alleged that because she and Husband Number Two may have children in the future, and because this would confuse the subject child, the subject child should bear the surname of Husband Number Two. Mother’s embarrassment or inconvenience, however, is not a sufficient reason to deny the child father’s surname.22 Further, the stability of the child must be considered. Here, Mother was involved with three different men within a short period. The argument that her future children will have different names than the subject child therefore fails—Mother could easily divorce and marry again. Should Mother be permitted to change the child’s name every time she changes relationships? Moreover, it is becoming common today for children living in the same household to have different names. Father, however, will always be the child’s father and while the child shares his surname, the child will always have that identity. This is especially important in situations where the mother attempts to estrange the child from the father.
IV. CONCLUSION
The law is clear that the sole consideration in determining a child’s surname is the best interest standard. It should not, however, always be the burden of unwed fathers to prove by clear and compelling evidence that their child should bear his surname. It is submitted that the interests of both parents and the child can be served in paternity cases with a rebuttable presumption that favors a compound surname. “A dual name would help the child to identify with both parents, a state of mind psychologists say is essential.”23 It gives the child a sense of belonging, an identity with extended family, and maintains the integrity of the parents’ identity.24
For update of this subject see Shapiro, “The Overruling of Magiera v. Luera,” 25 Nevada Family Law Report 3 (Fall 2012)
1. 106 Nev. 775, 802 P.2d 6 (1990).
2. Id. at 777.
3. Id. at 776.
4. NRS 125B.020 states:
1. The parents of a child (in this chapter referred to as “the child”) have a duty to provide the child necessary maintenance, health care, education and support.
2. They are also liable, in the event of the child’s death, for its funeral expenses.
3. The father is also liable to pay the expenses of the mother’s pregnancy and confinement.
4. The obligation of the parent to support the child under the laws for the support of poor relatives applies to children born out of wedlock.
5. 106 Nev. 775, 777, 802 P.2d 6 (1990).
6. Id.
7. The names of the parties involved in this action have been changed.
8. Magiera v. Luera, 106 Nev. 775, 777, 802 P.2d 6 (1990).
9. Id.
10. Id.
11. Keegan v. Gudahl, 525 N.W.2d 695, 697 (S.D. 1994).
12. See i.e., Keegan v. Gudahl, 525 N.W.2d 695, 697 (S.D. 1994).
13. See generally Gubert v. Deremer, 657 A.2d 856, 857-67 (N.J. 1995), for an historical review of this tradition. See also Pacheco, Latino Surnames: Formal and Informal Forces in the United States Affecting Retention and Use of the Maternal Surname, 18 T. Marshall L. Rev. 1 (1992); Note, “The Controversy Over Children’s Surnames: Familial Autonomy, Equal Protection and the Child’s Best Interest,” 1979 Utah L. Rev. 303, 305; Seng, Like Father, Like Child: The Rights of Parents in Their Children’s Surnames, 70 Va. L.Rev. 1303, 1323 (1984).
14. Re Marriage of Schiffman, 620 P.2d 579, 581 (Cal. 1980).
15. Gubernat v. Deremer, 657 A.2d 856, 867-68 (1995); James v. Hopmann, 907 P.2d 1098 (Okl. App. 1995); Re Marriage of Schiffman, 620 P.2d 579, 581 (Cal. 1980); Block v. Bartelt, 580 N.W.2d 152, 153 (S.D. 1998).
16. Gubernat v. Deremer, 657 A.2d 856, 868 (1995).
17. Id. at 869.
18. Garrison v. Knauss, 637 N.E.2d 160, 161 (Ind. App. 1994).
19. D.R.S. v. R.S.H., 412 N.E.2d 1257, 1264 (Ind. App. 1980). See generally Note, “Like Father Like Child: The Rights of Parents In Their Child’s Surnames,” 70 Vir. Law Rev. 1303, 1350 (1984).
20. D.R.S. v. R.S.H., 412 N.E.2d 1257, 1264 (Ind. App. 1980).
21. Gubernat v. Deremer, 657 A.2d 856, 869 (1995).
22. Laks v. Laks, 540 P.2d 1277 (Ariz. Ct. App. 1975).
23. Note, “Like Father, Like Child: The Rights of Parents In Their Child’s Surnames,” 70 Vir. Law Rev. 1303, 1350 (1984).
24. Id. at 1348-49.