[Cite as D.W. v. T.L., 134 Ohio St.3d 515, 2012-Ohio-5743.]




                        D.W., APPELLEE, v. T.L., APPELLANT.
           [Cite as D.W. v. T.L., 134 Ohio St.3d 515, 2012-Ohio-5743.]
Children—Name change—Minor child of unmarried parents—Best interest of
        child—Father’s interest in having child bear paternal surname should not
        be given greater weight than mother’s interest in having child bear
        maternal surname—Guidelines to be considered in determining best
        interest of child—Gender-based stereotypes may not be basis for ordering
        name change.
 (No. 2011-1979—Submitted September 25, 2012, at the Case Western Reserve
                   University Session—Decided December 6, 2012.)
               APPEAL from the Court of Appeals for Clinton County,
                        No. CA2011-03-004, 2011-Ohio-5228.
                              _______________________
        CUPP, J.
        {¶ 1} This appeal concerns a trial court’s decision granting a request to
change the surname of a child, who was born to unmarried parents, from the
surname of the mother as listed on the birth certificate to the surname of the
father, over the mother’s objections. For the reasons that follow, we determine
that the decision to change the child’s surname was not supported by sufficient
evidence as a matter of law. Therefore, we reverse the judgment of the court of
appeals and remand this cause to the trial court for entry of final judgment in
favor of the appellant mother.
                           I. Facts and Procedural History
        {¶ 2} L.D.W.L. was born to his mother, T.L. (the appellant) and father,
D.W. (the appellee), an unmarried couple, in June 2005. After the child’s birth,
the parents discussed the matter of naming the child in detail, and they ultimately
                                  SUPREME COURT OF OHIO




agreed to have the child bear his mother’s surname. As a part of this agreement,
the couple decided to give the child two middle names, making the child’s second
and third names the same as his father’s first and last names. Although the child’s
surname was apparently a contentious issue between the parents, they both signed
the birth certificate, which listed the child’s full name, prior to the child’s leaving
the hospital.
         {¶ 3} The child initially lived with his mother and half-sister in
Cincinnati, while his father lived in Wilmington, Ohio. When the child was 18
months old, his mother purchased a home and his father moved in with the family.
In April 2007, the father joined the military in order to better meet the needs of
the household. He attended basic training and was deployed overseas for a time.1
Subsequently, he was stationed in Columbus, Ohio, and commuted to be with the
family about three days a week. Then, in August 2009, the parents ended their
relationship. On September 28, 2009, the father filed in the Juvenile Division of
the Clinton County Court of Common Pleas a “complaint to determine paternity
and establish parental rights and responsibilities” involving the child.
         {¶ 4} The parents eventually reached agreement on issues pertaining to
paternity, the parenting plan, child support, and other parental rights and
responsibilities. In particular, the father agreed that the mother should have sole
legal and residential custody of the child with the father having visitation every
other weekend and one day a week. The only issue remaining for determination
was the father’s request to change the child’s surname to match the father’s
surname. Consequently, a magistrate held an oral hearing on the name-change
question at which both the mother and father testified. The parties presented no
other testimony, and the only documentary evidence submitted was a copy of the
child’s birth certificate.

1. The record in this case does not indicate the specific date of the father’s overseas deployment or
the length of time he was deployed.




                                                  2
                               January Term, 2012




       {¶ 5} Testimony at the hearing established that the child, then five years
old and in preschool, had since his birth been referred to by his given name and
his surname, and he had always lived with his mother and his half-sister, both of
whom shared his last name. The father was actively involved in the child’s life
and provided financial support for his care. The mother acknowledged that she
wanted the child to continue to have a good relationship with his father.
       {¶ 6} The father testified regarding his reasons for pursuing the change
of his child’s surname. These reasons included wanting his son to have the same
last name as his own, wanting his son to “have something of mine” while the
father was deployed, and wanting his son to carry on the father’s legacy through
his surname should the father be killed in combat. The father opined that a
change of his son’s surname would not have a harmful effect on the child and that
changing the child’s name would “be meaningful” to both of them.
       {¶ 7} The mother testified regarding her reasons for wanting the child’s
surname to remain the same. She stressed that the father’s full name was already
contained within the child’s full name and that the child, who had developmental
delays and was on an individualized education program, did not adjust well to
change. The mother further testified that the child knew his last name (which was
the same as his half-sister’s surname), that the child was working on learning to
write his existing last name, and that the child lived in the same household with
the mother and half-sister. She believed that it would be detrimental for the child
to start over and learn a new surname that would be different from the mother’s
and half-sister’s surname, especially in view of the child’s significant
developmental disabilities.
       {¶ 8} The magistrate orally ruled in favor of the father’s request at the
conclusion of the hearing and ordered that the child’s surname be changed to the
same as the father’s last name. The magistrate later signed an order stating that
the name change “would be in the minor child’s best interest.” The mother filed




                                         3
                              SUPREME COURT OF OHIO




objections to the magistrate’s ruling. However, the juvenile-court judge overruled
the objections, agreed with the magistrate that the child’s surname should be
changed, and ordered that the birth certificate be changed to reflect the new name.
Upon appeal, the Twelfth District Court of Appeals held that the trial court did
not abuse its discretion and affirmed. D.W. v. T.L., 12th Dist. No. CA2011-03-
004, 2011-Ohio-5228.
        {¶ 9} We accepted the mother’s appeal under our discretionary
jurisdiction for review of two propositions of law, which assert that the trial
court’s decision was improperly based on “discriminatory tradition and gender-
based assumptions” and that the trial court failed to properly follow this court’s
precedents regarding the standards for deciding whether the change of a child’s
name is in the child’s best interest.
                                        II. Analysis
        {¶ 10} When reviewing a trial court’s decision determining that a child’s
name either should or should not be changed, a reviewing court may not substitute
its own judgment for that of the trial court, but it must consider whether the trial
court abused its discretion. See Jarrells v. Epperson, 115 Ohio App.3d 69, 71,
684 N.E.2d 718 (3d Dist.1996); In re Dayton, 155 Ohio App.3d 407, 2003-Ohio-
6397, 801 N.E.2d 531, ¶ 9 (7th Dist.). When there is insufficient evidence as a
matter of law that a name change is in the best interest of the child, a trial court’s
judgment changing a child’s surname must be reversed. Bobo v. Jewell, 38 Ohio
St.3d 330, 335, 528 N.E.2d 180 (1988); see In re Wolfe, 2d Dist. No. 19136,
2002-Ohio-3277, ¶ 11 (a trial court abuses its discretion when it orders a surname
change upon insufficient evidence that the change is in the child’s best interest).
        {¶ 11} Our consideration of the trial court’s ruling is framed by two of our
precedents: Bobo and In re Willhite, 85 Ohio St.3d 28, 706 N.E.2d 778 (1999).
        {¶ 12} “Pursuant to R.C. 3111.13(C), a court of common pleas may
determine the surname by which the child shall be known after establishment of




                                             4
                                January Term, 2012




the existence of the parent and child relationship, and a showing that the name
determination is in the best interest of the child.” Bobo, at paragraph one of the
syllabus. The appellate court in this case applied the first part of this holding
from Bobo to determine that the juvenile court had statutory authority to consider
the name change. The appellate court’s conclusion on that issue has not been
appealed and is not at issue before us.
       {¶ 13} In Bobo, we held:


               In determining the best interest of the child concerning the
       surname to be used when parents who have never been married
       contest a surname, the court should consider: the length of time
       that the child has used a surname, the effect of a name change on
       the father-child relationship and on the mother-child relationship,
       the identification of the child as part of a family unit, the
       embarrassment, discomfort or inconvenience that may result when
       a child bears a surname different from the custodial parent’s, the
       preference of the child if the child is of an age and maturity to
       express a meaningful preference and any other factor relevant to
       the child’s best interest. Courts should consider only those factors
       present in the particular circumstances of each case.


Bobo, 38 Ohio St.3d 330, 528 N.E.2d 180, at paragraph two of the syllabus.
       {¶ 14} We cautioned in Bobo, at 334, that courts in unmarried-parent
situations should not give greater weight to a “father’s interest in having the child
bear the paternal surname,” because this preference fails to consider that the
mother in this situation has “at least an equal interest in having the child bear the
maternal surname” and therefore is inherently discriminatory.




                                          5
                             SUPREME COURT OF OHIO




       {¶ 15} In the case of In re Willhite, 85 Ohio St.3d 28, 706 N.E.2d 778, at
paragraph one of the syllabus, we held that “[w]hen deciding whether to permit a
name change for a minor child pursuant to R.C. 2717.01(A), the trial court must
consider the best interest of the child in determining whether reasonable and
proper cause has been established.”
       {¶ 16} In Willhite, at paragraph two of the syllabus, we reiterated the
basic factors set forth in Bobo applicable to a trial court’s consideration of
whether to change a child’s surname and added two other specific factors:
“whether the child’s surname is different from the surname of the child’s
residential parent” and “parental failure to maintain contact with and support of
the child.” We explained that in contemporary society, a preference that a child
bear the father’s surname as “a sort of quid pro quo for the father’s financial
support” is improper because this preference ignores the mother’s parallel duty to
support the child and focuses too narrowly on the father. Id. at 31. We further
reinforced and strengthened the warning expressed in Bobo that trial courts should
not commit the mistake of focusing the best-interest inquiry on the father’s
interest in having the child bear his surname, reiterating that this approach is
fundamentally discriminatory. Id. at 31-32. Finally, as relevant here, we took
special note of the confusion that frequently occurs when a mother and child in
the same household bear different surnames. Id. at 33.
       {¶ 17} Although Bobo and Willhite arose in differing contexts, they set
out general guidelines that apply in any name-change determination involving a
minor child. See Willhite at 32 (applying the “same rationale” to both a name-
change action in probate court pursuant to R.C. 2717.01 and a name change in a
juvenile-court paternity action pursuant to R.C. 3111.13(C)). Taken together,
those two decisions require that a parent (in this case the father) who seeks to alter
the status quo by changing the child’s surname bears the burden of presenting
sufficient evidence to affirmatively demonstrate that the change is in the child’s




                                          6
                                 January Term, 2012




best interest. See Willhite at paragraph one of the syllabus (“reasonable and
proper cause” must be established for the name change to be permitted); In re
Change of Name of Halliday, 11th Dist. No. 2005-G-2629, 2006-Ohio-2646, ¶ 18
(burden is on the party who seeks the name change to establish that the change is
in the child’s best interest).
        {¶ 18} Some of the factors set forth in Bobo and Willhite are not relevant
to the situation here. As to those factors that are relevant, and the other factors
taken into account by the magistrate and the trial judge, the evidence presented
did not tip the balance one way or the other. However, with our case precedents
in mind, a review of the full record in light of the considerations enumerated in
Bobo and Willhite compels us to conclude that the decision to change the child’s
surname was not supported by sufficient evidence probative of the child’s best
interest, and the decision must be reversed.
        {¶ 19} On this record, we must agree with the contention of the mother
that the general import of the father’s testimony was that the change of name
should be granted on the basis of the father’s own wishes and interests and not, as
the law requires, on the best interests of the child. The father’s testimony is
replete with references to his own worries, wants, fears, preferences, beliefs, etc.,
including testimony of his own past experience growing up without a father
figure. The father’s testimony is exemplified by the statement that it was “huge”
to the father that his son should bear his surname. Although we do not disagree
that these concerns and considerations are of great significance to the father
regarding his son, the father offered minimal support for his opinion that the name
change would not be harmful to the child, and even the reasons that were offered
did not bear upon the more relevant issue of whether the name change would
affirmatively be in the child’s best interest.
        {¶ 20} In contrast, the mother’s testimony provided specific reasons why
the name change would likely be detrimental to the best interest of the child,




                                           7
                             SUPREME COURT OF OHIO




including that the child’s developmental disabilities and his inability to adapt to
change would make it very difficult for him to accept the new surname. The
concern raised by the mother that, if changed, the child’s surname would be
different from that of the others in the residential household was specifically
recognized in Willhite as a prominent factor for consideration by a trial court. See
85 Ohio St.3d at 32, 706 N.E.2d 778; In re Application for Change of Name of
McGowan, 7th Dist. No. 04 HA 572, 2005-Ohio-2938, ¶ 28 (noting that Willhite
recognized the “important consideration” that it is preferable to avoid changing a
name that a child shares with the residential parent); Wolfe, 2002-Ohio-3277, at
¶ 16 (finding error in a trial court’s failure to consider, as a factor that “clearly
favored” the child continuing to bear the mother’s surname, that the mother was
the residential parent).
        {¶ 21} Moreover, based on the record that is before us, the mother’s
position that the trial court’s decision was, at least in part, based on gender-based
traditions and assumptions, contrary to this court’s cautionary warnings in Bobo
and Willhite, has merit. One of the reasons given by the trial court supporting the
decision to allow the name change was that if either parent marries, “[t]he father
is far less likely to change his surname” than the mother. We recognize that the
trial court’s comment that a woman who marries “often takes her spouse’s
surname” is not an inaccurate observation. However, this generic consideration—
that a woman is more likely to change her surname if she should marry—cannot
be a valid factor supporting a name change in a specific case like the one before
us, and it runs counter to the explicit directives of Bobo and Willhite. See
McGowan, 2005-Ohio-2938, at ¶ 31 (it is improper to “perpetuate the
discrimination against mothers or against non-marital children by imposing
different naming standards upon them”).




                                          8
                               January Term, 2012




                                 III. Conclusion
       {¶ 22} In summary, the trial court in this case placed too much emphasis
on the father’s interest in having the child bear the paternal surname and did not
confine its consideration to the best interest of the child. See Bobo, 38 Ohio St.3d
at 334, 528 N.E.2d 180; Willhite, 85 Ohio St.3d at 32, 706 N.E.2d 778.
Furthermore, the trial court’s decision at least in part was improperly founded on
gender-based conventions and stereotypes. See Bobo at 334; Willhite at 32. In
this situation, where insufficient evidence supported the name change, the trial
court’s judgment was erroneous as a matter of law. Bobo at 335.
       {¶ 23} We therefore reverse the judgment of the court of appeals and
remand this cause to the trial court to enter final judgment denying the name-
change request.
                                                                Judgment reversed
                                                              and cause remanded.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and MCGEE BROWN, JJ., concur.
                               _________________
       Whitaker & Shade, L.L.C., and Neal W. Duiker, for appellee.
       Ginger S. Bock Law Office, Inc., and Ginger S. Bock, for appellant.
                             ___________________




                                         9
