                          District of Columbia
                           Court of Appeals

No. 14-FM-1324                                                   NOV 17 2016

RENEE MONIQUE MELBOURNE,
                    Appellant,
                                                        FSP-688-13
      V.

MARCUS TAYLOR,
                              Appellee.

      Before: GLICKMAN and FISHER, Associate Judges; and RUIZ, Senior Judge.

                                   ORDER

     On consideration of this court’s opinion in the above titled case, decided
November 3, 2016, it is

       ORDERED that the following corrections shall be made: On page 7, line
14, replace “Ms. Melbourne” with “she” and delete “who was proceeding pro se”;
on page 8, line 1, insert a comma after the word “waiver,” and on page 11, footnote
4, insert “Ms. Melbourne’s” before “Counsel” and start this word with a lower case
“c”.
      FURTHER ORDERED that an amended opinion is attached to this order.


                                  It is so ordered.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.


          DISTRICT OF COLUMBIA COURT OF APPEALS
                                                                        11/17/16
                                No. 14-FM-1324

                   RENEE MONIQUE MELBOURNE, APPELLANT,

                                       V.

                          MARCUS TAYLOR, APPELLEE.

                           Appeal from the Superior
                        Court of the District of Columbia
                                  (FSP-688-13)

                       (Hon. Robert R. Rigsby, Trial Judge)

(Argued June 7, 2016                                 Decided November 3, 2016)

                        (Amended November 17, 2016)*

      Renee Monique Melbourne, pro se.

      Alan B. Soschin for appellee.

       Jonathan H. Levy, with whom Stephanie Troyer and Paul Perkins were on
the brief, for amicus curiae Legal Aid Society of the District of Columbia.

      Before GLICKMAN and FISHER, Associate Judges, and RUIZ, Senior Judge.



      *
          This amended opinion reflects in footnote 4, that appellant was
represented by counsel at trial, and other minor editorial changes.
                                          2

      RUIZ, Senior Judge:      On October 7, 2013, appellant, Renee Monique

Melbourne, filed with the Superior Court an application to change the last name of

her minor daughter (“the child”) from Taylor to Melbourne. The child’s father,

Marcus Taylor, opposed the name change. After hearing testimony from both

parents, the court denied appellant’s application.      On appeal, Ms. Melbourne

argues that the trial court applied an improper standard when it denied the name

change application. This is an issue we have not addressed since 1971. We agree

with appellant, and reverse and remand the case to the trial court.



                                          I.



      Ms. Melbourne and Mr. Taylor were married and living together in the

District of Columbia when the child was born on May 11, 2012. A month later, the

couple separated and Mr. Taylor moved to Florida to live with his parents but, in

an attempt at reconciliation, Ms. Melbourne and the child soon moved to Florida to

live with Mr. Taylor. The attempt at reconciliation failed, and Ms. Melbourne and

the child moved back to the District of Columbia in September of 2012.



      The next year, the couple was granted an absolute divorce on May 6, 2013.

The court ordered joint legal custody of the child with Ms. Melbourne having
                                          3

primary physical custody, and Mr. Taylor awarded reasonable visitation. In a

separate child support order, Mr. Taylor was ordered to pay $1,090.00 monthly,

and to maintain health insurance for the child.



      Following the divorce, Ms. Melbourne filed the name change application on

October 7, 2013, and a trial was held on September 4, 2014.           At trial, Ms.

Melbourne testified that she wished to change her daughter’s name due to having

“difficulties [] establishing that [she is] the mother [of her] daughter.”      Ms.

Melbourne recounted an instance when she had taken her daughter to temporary

childcare for the day because her primary daycare provider was closed. Ms.

Melbourne testified that a childcare worker must have assumed that Ms.

Melbourne and her child shared a last name, and recorded Ms. Melbourne’s name

incorrectly, as “Taylor,” on the pickup sheet. When Ms. Melbourne came to

collect her daughter later that day, her identification showed a different name than

that on the pickup sheet, and did not match the child’s last name. She was initially

prevented from leaving with her child. Eventually, after a director was called, “it

all got straightened out,” but it was a “process” that Ms. Melbourne wished to

avoid in the future.
                                          4

      Ms. Melbourne also testified about another incident. While in the waiting

room at the hospital where her daughter was having ear surgery, a hospital staff

person called out to have “Ms. Taylor” come back to see the child, and another

woman (presumably, named Ms. Taylor) was taken to see Ms. Melbourne’s

daughter. In a nutshell, Ms. Melbourne testified that she wished to change the

child’s last name to hers in order to avoid what had been a recurring problem

where someone assumed, incorrectly, that she and the child had the same last name

and she was temporarily hindered as the custodial parent.            Ms. Melbourne

explained that her motive in wanting to have the child’s last name changed was to

end those problems, not to cause an estrangement between the child and her father.

She commented, however, that Mr. Taylor had not manifested a continuing interest

in the child, stating that Mr. Taylor had not called, emailed, or contacted her in any

other way in order to facilitate the father-child relationship over the preceding

twelve months. She further testified that after she had applied for the name

change, she received an email from Mr. Taylor in March 2014 in which he

threatened to kill the child.    Ms. Melbourne did not contact the police after

receiving the threat because she thought he was only trying to scare her into

dropping the name-change application and, in any event, he was in Florida and did

not know where she and the child lived. He did, however, have her email address

and telephone number.
                                          5


      Mr. Taylor testified that he opposed the name change because he and Ms.

Melbourne agreed when the child was born that she would pick the child’s first and

middle names and the child would bear his last name. Mr. Taylor denied that he

had sent the threatening email, and explained that he had not used the email

address from which it was sent since 2012. He testified that he had made an effort

to stay in the child’s life, but that his efforts had been thwarted by Ms. Melbourne.

Mr. Taylor testified that he had made “four or five” attempts during the preceding

year to exercise his visitation rights but that Ms. Melbourne always said that the

dates did not work for her or the child’s schedules. This included the week of the

hearing, when he was in town, and Ms. Melbourne told him he could see the child

only on the weekend, but he could not afford to stay that long. Mr. Taylor said that

if the child’s name were changed he would not treat his daughter any differently.

However, because he was being prevented from seeing the child, he thought their

relationship would be diminished as he believed the only reason the child “knows

who [he is] is because she [has his] last name.”



      After hearing testimony from both parties, the trial court issued a written

order denying Ms. Melbourne’s name-change application “in consideration of the

best interest of the child pursuant to D.C. Code § 16-831 et seq.” In order to

determine the best interests of the child the court set out four factors which it cited
                                          6

as originating in Nellis v. Pressman, 282 A.2d 539, 542 (D.C. 1971), and addressed

each factor in turn:



                    (1) [c]hildren ought not to have another name
             foisted upon them until they reach an age when they are
             capable of making an intelligent choice in the matter of a
             name; (2) [t]he bond between a divorced father and his
             children is tenuous at best and if their name is changed
             the bond may be weakened if not destroyed; and the
             name under which a child is registered in school goes far
             to effect a name change; (3) [w]hen a father supports a
             child, manifests a continuing interest in him, is guilty of
             no serious misconduct and without unreasonable delay,
             objects to an attempted change of name, the Court should
             decide the issue by determining what is for the child’s
             best interest; and (4) [a] change of name may not be in
             the child’s best interest if the effect of such change is to
             contribute to a further estrangement of the child from a
             father who exhibits a desire to preserve the parental
             relationship.


                                              II.


      Applying these factors, the trial court found that: (1) as the child was then

only two years old, her name should not be changed because she is unable to make

an intelligent choice on the matter; (2) the father’s physical absence from the

child’s life for more than a year — whatever the reason — meant that a name

change “would weaken — and likely destroy — the bond” between the child and

Mr. Taylor; (3) the father is current in his child support obligations, has
                                             7

demonstrated a continuing interest in the child, has not engaged in any

misconduct,1 and filed a timely objection to the name-change application; and (4)

the father has a desire to preserve a parental relationship with the child, but in light

of the acrimony between the parents, a name change would “further estrange the

relationship.”



         Ms. Melbourne argues that the judgment of the trial court must be reversed

because the standard applied was erroneous. The appropriateness of the legal

standard applied by the trial court is ordinarily reviewed de novo by this court. See

In re T.H., 898 A.2d 908, 911 (D.C. 2006). However, Mr. Taylor argues that

because Ms. Melbourne did not object to the factors that the trial court previewed

before trial and applied at trial, she waived her ability to raise the issue on appeal.2

We agree that Ms. Melbourne failed to preserve her claim of error below, but that

does not mean that she affirmatively agreed with the legal standard the court

informed the parties it would apply such that no appellate review can be had. We

do not easily impute affirmative waiver, and are especially loath to do so when


         1
             The trial court credited Mr. Taylor’s testimony concerning the threatening
email.
         2
         In fact, the waiver argument is the only argument that Mr. Taylor makes
on appeal. He does not argue the merits of the order, and agrees that if the court
applied the incorrect standard, remand for a new trial is necessary.
                                           8

substantive rights of a child are at stake. Instead, we review the claim on appeal

for plain error. See In re D.B., 947 A.2d 443, 450 (D.C. 2008). “On a plain error

review, an appellant must demonstrate that the objectionable action was (1) error,

(2) that [was] plain, (3) that affect[ed] substantial rights, and (4) the error seriously

affect[ed] the fairness, integrity, or public reputation of the judicial proceedings.”

Juvenalis v. District of Columbia, 955 A.2d 187, 192 (D.C. 2008) (internal

quotation marks omitted).



      We conclude that the high bar erected by plain error review is met in this

case. First, application of the factors which the court cited as originating in Nellis,

was legal error. The factors applied by the trial court were not established in

Nellis, but were from a 1956 Massachusetts case, Mark v. Kahn, 131 N.E.2d 758

(Mass. 1956). While this court in Nellis mentioned the Mark factors, as well as

factors from another non-precedential case, it did not apply them. In fact, although

in Nellis the court initially expressed it had “no problem” with two factors,

ultimately we explicitly rejected them, stating “[w]e do not consider Mark and
                                          9

Ouellette as being worthy of the weight apparently given them by the trial court.”

Nellis, 282 A.2d at 543-44.3




      Not only were the Mark factors not applied in Nellis, they also contain

doubtful premises that this court should not accept or perpetuate. For example, the

      3
          In Nellis, after the parents were divorced and the mother remarried and
changed her name, she changed the children’s last name from their biological
father’s name, Pressman, to that of their stepfather, Nellis, without seeking a court
order or the biological father’s consent. The biological father then sought a court
order changing their name back to Pressman. The trial court granted an injunction
to the father, and this court reversed. The factors relied on by this court in Nellis
were:


                    (a) the children have been known in this
             community for more than five years as Nellis and had a
             good relationship with their father during those years, (b)
             their name and identity as Nellis have become imbedded
             in their own minds as well, (c) the likely impact on their
             lives of changing back again after all these years to the
             name Pressman, (d) the children’s views are entitled to
             serious consideration because of their ages and level of
             intelligence, (e) the reality that the son is approaching the
             age (18) when he will be eligible to vote and, if
             necessary, serve in the armed forces and is therefore not
             far from the time when his wishes on his name would be
             difficult to deny, (f) the effect the injunction has already
             had in their lives and on the relationship with their father,
             and (g) the father’s physical remoteness from the
             community where the children reside.
282 A.2d at 544-45.
                                        10

notion that “the bond between a divorced father and his children is tenuous at best

and if their name is changed the bond may be weakened if not destroyed” is itself

tenuous at best. As a general proposition, divorced fathers, as well as mothers,

may have primary physical custody, or even exclusive legal custody of their

children. Some parents never marry, so divorce is not an issue with respect to their

ability to maintain strong connections with their children. Some parents are same-

sex couples and the gender distinction is inapt. Some children are born into

families where the custom is for children’s surnames to incorporate both the

father’s and the mother’s last names, as is often the case for persons of Latin

American or Spanish heritage.       In other words, there is no one-size-fits-all

resolution.



      Moreover, the notion that the father’s bond with his daughter would be

weakened if she did not have his last name finds no support in the evidence in this

case. Here, even though Mr. Taylor is not the parent with primary custody, he

testified that his love for and treatment of his daughter would “definitely not” be

altered if her last name were to be changed. His concern that the child would not

know he is her father if she used her mother’s name may be sincere, but there was

no evidence to support that concern. More compelling factors in ensuring his

parental relationship with a young child would be his continuing presence in her
                                         11

life through visits and other communications that express his interest and affection,

as well as compliance with child support obligations.4



      In addition to their doubtful factual premises, the Mark factors perpetuate

gender-based distinctions that have come under increasing judicial scrutiny since

Mark was decided over half a century ago.5 These distinctions are based on

stereotypes about the relationship between fathers and their children and do not

take into account (or even mention) how a name change might affect the bond

between mother and child. As they are based largely on gender stereotypes, and

not grounded on the best interests of the child, these distinctions raise significant

constitutional issues6 and are contrary to the law of the District of Columbia. See


      4
          Ms. Melbourne’s counsel explored these issues, asking whether Mr.
Taylor had visited his daughter, sent her birthday cards or presents, or inquired of
her daycare providers about her social or educational development. Mr. Taylor
responded that he had not, but had gone through counsel to arrange for visitation
and to find out about her daycare placement. He testified he was current with child
support payments.
      5
          Post-Mark, the courts in Massachusetts, as elsewhere, have moved away
from presumptions in favor of the paternal surname, in favor of “a principle of
equality” that “the right of the father to have the child bear his name is no greater
than that of the mother to have the child bear her name.” Jones v. Roe, 604 N.E.2d
45, 47 (Mass. App. Ct. 1992) (citing cases and setting out several child-centered
factors that should guide court’s determination).
       6
         “Gender-based distinctions ‘must serve important governmental objectives
and must be substantially related to achievement of those objectives’ in order to
withstand judicial scrutiny under the Equal Protection Clause.” See Caban v.
                                                             (continued . . .)
                                         12

Reed v. Reed, 404 U.S. 71, 76-77 (1971) (holding, in context of probate law

favoring fathers, that the Equal Protection Clause applies to gender classifications

and does not allow a legal preference for one gender “solely on the basis of sex”);

Lehr v. Robertson, 463 U.S. 248, 266 (1983) (noting that government “may not

subject men and women to disparate treatment when there is no substantial relation

between the disparity and an important state purpose”); W.M. v. D.S.C., 591 A.2d

837, 843 (D.C. 1991) (“The fortuity of gender cannot determine the extent of a

parent’s obligation to his or her child.”); D.C. Code § 16-914 (a)(1)(A) (providing

that sex of parent “in and of itself, shall not be a conclusive consideration” in

court’s determination as to the legal and physical custody of a child).



      Second, the error was plain. “In order to determine whether the error was

plain, the error must have been obvious or readily apparent, and clear.        This

requires a determination of whether the claimed error was clearly at odds with
__________________________
(. . . continued)
Mohammed, 441 U.S. 380, 388 (1979) (quoting Craig v. Boren, 429 U.S. 190, 197
(1976)); see id. at 391-92, 394 (holding that statutory provision that distinguished
between unwed fathers and mothers, and gave only mothers right to veto adoption
of child, bore no substantial relation to important state interest in providing
adoptive parents to “illegitimate” child, and violated the Equal Protection Clause
(citing Reed, 404 U.S. at 76)). It is the view of the author of this opinion that
factors which express a generalized preference for the father’s wishes concerning a
name change do not bear substantially on the state’s interest in promoting the
welfare of the child and thus do not withstand judicial scrutiny under the Equal
Protection Clause.
                                           13

established and settled law.” Juvenalis, 955 A.2d at 194-95 (citations omitted). It

is clear that this court did not adopt the Mark factors in Nellis. It is also clear that

factors applied by the trial court included gender-based stereotypes that could not

serve as a substitute for a determination of the best interests of a child.



      Third, the error affected substantial rights. An appellant must show “a

reasonable probability [that] the errors had a prejudicial effect on the outcome of

his trial.” Juvenalis, 955 A.2d at 195. As the trial court based its ruling solely on

the erroneous factors, there is no doubt that they affected the outcome.



      Finally, “a new trial is warranted when the error was so clearly prejudicial to

an appellant’s substantial rights as to jeopardize the very fairness and integrity of

the trial.” Id. Application of gender-based factors that are not geared to the best

interests of the child and are contrary to the law of the District of Columbia and

constitutionally suspect, jeopardizes the fairness, integrity, and public reputation of

the court’s proceedings.


      Mr. Taylor concedes that if this court finds that the wrong standard was

applied, remand for a new trial is necessary. We agree. Prior to trial, the court

informed the parties of the factors that it would be applying (the Mark factors),

with the result that their evidence and arguments were aimed at meeting that
                                          14

erroneous standard. Therefore, we reverse and remand the case to the Superior

Court for further development of the record geared to the court’s consideration of

the proper relevant factors.



       On remand the party requesting the name change has the burden of proof to

show by a preponderance of the evidence, see In re E.D.R., 722 A.2d 1156, 1159

(D.C. 2001) (noting that civil cases generally require proof by preponderance of

the evidence and impose burden on party seeking relief), that the touchstone

standard — the best interests of the minor child — is met. See In re S.C.M., 653

A.2d 398, 405 (D.C. 1995) (“[I]n all proceedings affecting the future of a minor,

the decisive consideration is the best interests of the child.”).         The court’s

determination whether a name change is in the best interests of the child should not

be based on general presumptions or stereotypes but on individualized

determinations that are gender-neutral, family-specific and, above all, child-

centered.7 As we stated in Nellis, proper factors to be considered include but are

      7
         Many best interests of the child determinations in the District of Columbia
are guided by a variety of statutory factors. See, e.g., D.C. Code § 16-831.08
(third-party custody of child); id. at § 16-914 (a)(3) (parental custody); id. at § 16-
2353 (b) (termination of parental rights). There is no similar statute mandating
factors that must be considered in the context of a minor’s name change, but as
Nellis shows, a number of factors may be relevant, as dictated by the facts specific
to the child and his or her family. See also D.C. Code § 7-205 (e)(5) (2012 Repl.)
(providing that, at birth, “[t]he surname of the child shall be the surname of a
                                                             (continued . . .)
                                           15

not limited to: how long and how widely the child has been known by her current

name, the extent to which the child’s name has become embedded in the child’s

own mind and identity, and the view of the child (depending on the age of the

child). 282 A.2d at 543-45; see also D.C. Code §§ 16-831.08 (a)(4), 16-914

(c)(3)(A), 16-2353 (b)(4) (2012 Repl.) (including the child’s “opinion of his or her

own best interest in the matter” and “the wishes of the child” as factors to be

considered in determining third-party custody, parental custody, and termination of

parental rights). Another factor critical to the child’s best interest is how the

proposed name change would affect the safety and well-being of the child, which

may include consideration of parental misconduct (especially involving an

intrafamily offense) or reputation but only to the extent that it might affect the

child’s safety or sense of self and well-being. See D.C. Code § 16-831.08 (b)

(presumption that award of custody to third party who has committed intrafamily

offense is not in best interest of child); id. at § 16-914 (a)(3)(F) (listing evidence of

intrafamily offense as factor to be considered in determining parental custody).




      For the foregoing reasons, we reverse and remand for further proceedings
__________________________
(. . . continued)
parent whose name appears on the child’s birth certificate, or both surnames
recorded in any order or in hyphenated or unhyphenated form, or any surname to
which either parent has a familial connection”).
                                16

consistent with this opinion.



                                     So ordered.
