

Affirmed in part, Reversed & Rendered
in part and Opinion filed March 1, 2011.
 
In
The
Fourteenth
Court of Appeals

NO. 14-10-00659-CV

In the Interest
of H.S.B., a Child

On Appeal from
the 257th District Court
Harris County, Texas
Trial Court
Cause No. 2009-35592

 
OPINION
Appellant Amber Brittain appeals from an order
adjudicating parentage, in which the court ordered the surname of a child born
to Brittain and appellee David Chalifoux to be changed from Brittain to
Chalifoux.  In three issues, Brittain argues that the trial court impermissibly
considered “tradition” evidence, and the evidence is legally and factually
insufficient to support the trial court’s findings that the name change would
be in the child’s best interest and that there was good cause for the name
change.  We reverse the portion of the trial court’s order granting the name
change and render judgment that the child’s surname shall remain Brittain.
Background
Brittain and Chalifoux were coworkers and friends
when they had a brief romantic relationship that resulted in the conception and
birth of their son, H.S.B.  They did not marry, and Brittain gave birth to the
child on May 25, 2009.  The child was given his mother’s surname.  A few weeks
after the birth, Chalifoux filed a petition to adjudicate parentage to
establish his paternal rights to the child and his support obligations. 
Brittain and Chalifoux entered mediation and agreed on nearly every term,
including that the parents would be joint managing conservators, Brittain would
have the exclusive right to designate the child’s residence, and Chalifoux
would have certain visitation rights and financial support obligations.  The
single issue they could not agree upon was the surname of the child.
At a bench trial on March 15, 2010, both Chalifoux and
Brittain testified on the name change issue.  Chalifoux’s direct testimony, in
full, was as follows: 
Q.     Are you asking the Court to change this child’s
name to [H.S.] Chalifoux?
A.     Yes.
Q.     You think that’s in the best interest of your
child?
A.     Yes.
Q.     And you filed this case, didn’t you?
A.     Yes.
Q.     And you pursued this diligently so that you
could have a relationship with your child?
A.     Yes.
Q.     It wasn’t always easy, was it?
A.     No, it was not.
Q.     But you were determined to be involved in your
child’s life; is that correct?
A.     Yes.
Q.     And you think it’s in the best interest that he
have your last name; is that correct?
A.     Yes.
Q.     And is it — is it your belief that he should
have your last name because that is the tradition in this country?
A.     Yes.
Q.     And also because you think it will be better
for your child?
A.     Yes.
On
cross, he could not provide a specific reason for changing the child’s name:
Q.     Do you have any reason why keeping
the name Brittain would be detrimental to the child?
A.     It’s — he should have my last name.
Q.     Do you have any other reason why it should be
changed to Chalifoux.
A.     No,
I do not.
It was uncontested that
Chalifoux had agreed to help financially support the child and reimburse
Brittain for all prenatal and postnatal expenses and insurance costs. 
Chalifoux also testified that it had been difficult to bond with his child
during supervised visits, but he had made an effort to do so.
Brittain testified that she has another son who lives
with her, the other son is older than H.S.B by less than three years, and he
has the Brittain surname.  Both of her sons have first names that end with the
syllable “son,” which she chose to encourage a sibling bond.  Because of their
closeness in age, Brittain explained that the boys would at times attend the
same school.  She worried that it would alienate H.S.B. to have a different
name from his brother while they attended the same schools, lived in the same
house, and attended the same church.  She was concerned that it would lead to
social awkwardness because the brothers will be together often at school and
church.  Brittain testified “from personal experience” that it is embarrassing
and awkward to grow up with a different last name from one’s siblings because
the child is forced to explain to other children what two adults did to put the
child in that situation.
She further testified that she would not change her
surname if she ever chose to get married in the future, and she would not
change either of her sons’ names.  She explained that her reasons for wanting
to keep her child’s last name was not to alienate Chalifoux from his son—Chalifoux
was the first person Brittain told about the pregnancy, he attended several
doctor’s visits while she was pregnant, and she called him to the hospital on
the day their son was born.
Brittain also testified about tradition.  She said
that she thought it was more traditional for a child to have the same surname
as his or her siblings and the members of the same household.  She acknowledged
that it is traditional for children to bear their father’s surname, but usually
in that situation the parents have been married or the father is living in the
same house.
Finally, the trial court allowed testimony about
alleged misconduct by Chalifoux, over his objection.  Brittain testified that
Chalifoux had skipped, arrived late, or departed early from a number of
visitation sessions with the child.  He would pay medical bills but did not always
ask about the welfare of the child.  There was also evidence that the mediated
settlement agreement included an unpaid amount of $4,200 for past support.  
On May 3, 2010, the court ordered that the child’s
surname would be changed to Chalifoux, and the court later entered findings of
fact and conclusions of law in which the court found that the name change would
be in the best interest of the child.[1] 
The court also found that Chalifoux “has maintained a significant relationship
with the child.”  This appeal followed.
Analysis
            In her first
issue, Brittain argues that the trial court impermissibly considered evidence
of tradition.  In her second and third issues, Brittain challenges the
sufficiency of the evidence for the trial court’s findings that changing the
child’s name would be in the child’s best interest and that Chalifoux had shown
good cause for the name change.  We hold that a court may consider evidence of
tradition when determining if it is in a child’s best interest to order a name
change, but tradition alone is an insufficient ground for changing a child’s
name.  We also hold that the trial court abused its discretion in ordering the name
change because there was legally insufficient evidence to support a finding
that changing the name was in the child’s best interest.[2]
A.    Standard
of Review
We review for an abuse of discretion a trial court’s
decision to change the name of a minor child.  In re S.M.V., 287 S.W.3d
435, 446 (Tex. App.—Dallas 2009, no pet.); In re A.C.B., No.
14-99-01379-CV, 2001 WL 931567, at *1 (Tex. App.—Houston [14th Dist.] Aug. 16,
2001, no pet.) (mem. op., not designated for publication); see Newman v.
King, 433 S.W.2d 420, 424 (Tex. 1968).  A trial court abuses its discretion
when its ruling is arbitrary, unreasonable, or without reference to guiding
rules or legal principles.  London v. London, 94 S.W.3d 139, 143 (Tex.
App.—Houston [14th Dist.] 2002, no pet.).
We have explained that “insufficient evidence” is not
an independent point of error when the standard of review is abuse of
discretion, and the sufficiency of the evidence is merely a factor to consider. 
Id. at 143–44.  For a court to act within its discretion to change a
child’s name, however, the record must contain some evidence of a substantial
and probative character to support the trial court’s decision.  Zieba v.
Martin, 928 S.W.2d 782, 787 (Tex. App.—Houston [14th Dist.] 1996, no writ). 
Accordingly, the abuse of discretion standard requires a two-pronged analysis:
(1) whether the trial court had sufficient information upon which to exercise
its discretion; and (2) whether the trial court erred in applying its
discretion under the appropriate legal authorities.  In re S.M.V., 287
S.W.3d at 446; In re M.C.F., 121 S.W.3d 891, 895 (Tex. App.—Fort Worth
2003, no pet.); see also Evans v. Evans, 14 S.W.3d 343, 346 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (reviewing the trial court’s division
of property with similar two-pronged analysis).
A party’s challenge to the sufficiency of the
evidence when the standard of review is abuse of discretion, as in this case, implicates
the first of the two inquiries.  In re M.C.F., 121 S.W.3d at 895.  Under
a legal sufficiency review, we must determine whether the evidence would enable
a reasonable and fair-minded person to reach the finding under review.  City
of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  We credit favorable
evidence if reasonable fact finders could and disregard contrary evidence
unless reasonable fact finders could not.  Id.  A legal sufficiency
challenge must be sustained when (1) the record shows a complete absence of
evidence of a vital fact, (2) the court is barred from giving weight to the
only evidence offered to prove a vital fact, (3) the evidence offered to prove
a vital fact is no more than a mere scintilla, or (4) the evidence establishes
conclusively the opposite of the vital fact.  Id. at 810; Wiese v.
Pro Am Servs., Inc., 317 S.W.3d 857, 860 (Tex. App.—Houston [14th Dist.]
2010, no pet.).[3]
B.     Name
Changes for Minor Children
The use of a single surname is a well-entrenched
custom in the United States, emanating from Anglo-Saxon patriarchal traditions.[4]  This
custom is perhaps incapable of being gender-neutral for a child born out of
wedlock, regardless of whether the paternal or maternal surname is selected for
the child.  For example, Chalifoux argued in the trial court that it is
tradition in this country for a child to take his or her father’s surname. 
This custom developed from various patriarchal notions, including that a man
was the head of a family, a woman had no legal rights separate from that of her
husband’s, and only legitimate children with their father’s surname could
inherit property.  See, e.g., Gubernat v. Deremer, 657 A.2d 856,
862–63 (N.J. 1995).  Brittain testified that it is more traditional for a child
born out of wedlock to take the surname of the custodial parent.  See In re
Guthrie, 45 S.W.3d 719, 724 (Tex. App.—Dallas 2001, pet. denied) (noting
the custom of non-marital children taking the mother’s surname).[5]  This
custom developed from the view of a woman as the “natural guardian” of a child;
yet it “was not the result of a right or privilege extended to women, but
instead was incidental to the societally imposed duty on her to care for the
child.”  Gubernat, 657 A.2d at 864.[6] 
The rationales for both of these naming traditions have been eradicated under
modern law: our society values gender equality, especially in family law
disputes when the welfare of a child is concerned.  See id. at 865; In
re Guthrie, 45 S.W.3d at 724; see also Tex. Const. art. I, § 3a (“Equality under the law shall
not be denied or abridged because of sex . . . .”); Tex. Fam. Code Ann. § 153.003 (West 2008) (prohibiting
preference based on sex in custody determination).  If we were to recognize
either tradition as controlling, we would be sanctioning a gender bias in the
naming of children.  This we cannot do.  See In re Guthrie, 45 S.W.3d at
724.
But by the very nature of our legal system, we must
place a burden of persuasion on parties seeking to do some action.  Such a
system inherently favors custom and tradition when a parent seeks to change the
name of a child because parents often follow custom and tradition when choosing
the original surname—most children born out of wedlock receive the mother’s
surname, and most children born during marriage receive the father’s surname.[7]  In Texas,
courts have held that a child’s name should not be changed unless the party
seeking the change shows that the original name is detrimental to the child.  In
re A.C.B., 2001 WL 931567, at *1; In re J.K., 922 S.W.2d 220, 222
(Tex. App.—San Antonio 1996, no writ).  “The power to change the name of a
minor child is exercised reluctantly and only when necessitated by the
substantial welfare of the child.”  In re J.K., 922 S.W.2d at 222; accord
Newman, 433 S.W.2d at 423; In re D.A., 307 S.W.3d 556, 564 (Tex.
App.—Dallas 2010, no pet.); In re M.C.F., 121 S.W.3d at 897.  The
child’s best interest is the primary concern—not the interests of the parents. 
In re S.M.V., 287 S.W.3d at 449; see In re J.K., 922 S.W.2d at
222.[8]
Neither the Texas Supreme Court nor this court has
identified what factors should be considered when determining if a name change
is in a child’s best interest.  But appellate courts in Texas and other jurisdictions
have identified many such nonexclusive factors.  We synthesize the following
factors as most relevant in the majority of cases: 
(1)       
the name that would best avoid anxiety, embarrassment, inconvenience,
confusion, or disruption for the child, which may include consideration of parental
misconduct and the degree of community respect (or disrespect) associated with
the name,
(2)       
the name that would best help the child’s associational identity within
a family unit, which may include whether a change in name would positively or negatively
affect the bond between the child and either parent or the parents’ families,
(3)       
assurances by the parent whose surname the child will bear that the
parent will not change his or her surname at a later time,
(4)       
the length of time the child has used one surname and the level of
identity the child has with the surname,
(5)       
the child’s preference, along with the age and maturity of the child,
and
(6)       
whether either parent is motivated by concerns other than the child’s
best interest—for example, an attempt to alienate the child from the other
parent.
See, e.g., Scoggins
v. Treviño, 200 S.W.3d 832, 837 (Tex. App.—Corpus Christi 2006, no pet.); In
re M.C.F., 121 S.W.3d at 897–98; In re Guthrie, 45 S.W.3d at 725; see
also Gubernat, 657 A.2d at 867–68; Lisa Kelly, Divining the Deep and
Inscrutable: Toward a Gender-Neutral, Child-Centric Approach to Child Name
Change Proceedings, 99 W. Va. L.
Rev. 1, 57–59 (1996); Weiner, supra, at 1710–12.
The relative importance of these factors, and other possible
factors, will depend on the unique facts and circumstances of each case.  See
In re Guthrie, 45 S.W.3d at 726.  We draw guidance on these factors
primarily from the Dallas Court’s opinion in In re Guthrie.  However, we
specifically reject three factors previously enunciated by other courts of
appeals.  First, in In re Guthrie, the court determined that the embarrassment
or inconvenience of the custodial parent was a factor, id. at 725, and
in In re M.C.F., the Fort Worth Court considered the “embarrassment,
inconvenience, or confusion for the custodial parent” without considering the
potential feelings of the child.  See 121 S.W.3d at 897.  We find such
considerations have no bearing on whether a name change is in the child’s
best interest, and they inappropriately shift the inquiry to the parents’
interests.  
We also abandon both the factor regarding the delay
in requesting or objecting to a name change and the factor that considers a
parent’s financial support.  See In re M.C.F., 121 S.W.3d at 897–98; In
re Guthrie, 45 S.W.3d at 725.  These factors have no implications for the
best interest of a child.  They serve to reward or punish parents for their
conduct unrelated to the name change.  Although it is surely in a child’s best
interest to have involved parents and to receive financial support, our focus
is whether a name change is in the child’s best interest.  Consideration
of a parent’s financial support is generally irrelevant to whether a name
change is in the child’s best interest; it merely gives a noncustodial parent
an increased naming right in exchange for something that the parent is already
required to do.  We concur with those courts and commentators that find no significant
relationship between support payments and the surname of a child.[9]  Further, a
child’s best interest may actually be disserved by a policy that considers a
child’s name to be the quid pro quo for accepting legal responsibility.  
Although we adopt the view that tradition or custom
alone may not override the best interest of a child, see In re Guthrie,
45 S.W.3d at 724, we cannot ignore the reality that tradition and custom are often
implicitly considered through some of the factors used to determine a child’s
best interest.  For example, tradition and custom may help determine which name
would best avoid anxiety, embarrassment, or confusion for the child.  See
Huffman v. Fisher, 987 S.W.2d 269, 275 (Ark. 1999) (noting that custom is
not one of the explicit factors, but reasoning that “such evidence may be
relevant in determining whether the child may experience difficulties,
harassment, or embarrassment from bearing a particular surname”).  Another
example is the tradition of associating a child with the level of community
respect or disrespect affiliated with a parent’s surname.  Although the practice
of “corruption of blood”[10]
is unconstitutional,[11]
the community-respect factor recognizes that society often blames children for
the conduct of their parents.[12] 
Because a best interest determination is a fact-specific inquiry that requires
courts to consider all relevant circumstances, see In re Doe 2, 19
S.W.3d at 282, evidence of tradition and custom should not be categorically
excluded if it would aid a court in determining a child’s best interest.
1.      Anxiety,
embarrassment, inconvenience, confusion, disruption, etc.
Here, Chalifoux testified that he wanted his child to
bear his surname because it was tradition, but this testimony was unsupported by
any explanation of how using his surname would be in the child’s best
interest.  There was no attempt to link tradition with any factors relevant to
the child’s best interest—Chalifoux offered no evidence that the Chalifoux surname
would be better than the Brittain surname to avoid anxiety, embarrassment,
confusion, inconvenience, or disruption for the child.  To the contrary,
Brittain testified from personal experience that it would be less embarrassing
for the child to have the same surname as his brother.
Accordingly, Chalifoux’s testimony about tradition
was no evidence of best interest.  Tradition, standing alone, cannot justify
changing a child’s name.  See In re Guthrie, 45 S.W.3d at 724; see
also Nohavitza v. Toman, No. A14-94-00235-CV, 1994 WL 699067, at *1
(Tex. App.—Houston [14th Dist.] Dec. 15, 1994, no writ) (not designated for
publication) (holding that the trial court did not abuse its discretion in
refusing to change the child’s surname from the mother’s to the father’s even
though “having the same name may be more traditional and might encourage the
relationship between father and daughter,” and the father testified about the
need to avoid public confusion and embarrassment).  
2.     
Identity within a family unit and parental bonds
Chalifoux presented no
evidence that a name change would help the child identify with a family unit or
further the bond between the child and either parent.  The court could not
disregard the uncontroverted evidence favoring Brittain on this factor.  In
particular, Brittain testified that H.S.B. would share the same last name as
his older brother, who would attend the same church and schools due to their
closeness in age.  Chalifoux has no other children, and thus, the use of
Brittain’s surname would more strongly associate H.S.B. with a family unit
consisting of his brother and the custodial parent.  See, e.g., In re
S.M.V., 387 S.W.3d at 450 (affirming name change partly because there was a
potential for confusion resulting from the child having a surname different
from both biological parents, and the new surname was shared with a full
sibling, thus encouraging familial bond); Scoggins, 20 S.W.3d at 837–42
(affirming change from mother’s maiden name to biological father’s partly
because the new name would encourage familial bond between the child’s
half-siblings who were unaware that the child was their sibling despite knowing
the child, father’s surname was well-respected in the community, and child
expressed desire to change name); In re Guthrie, 45 S.W.3d at 726
(affirming change from mother’s former husband to biological father’s surname
partly because there was no family in the child’s life with the original name,
and there was a family history and heritage associated with the father’s
name).  
The trial court also found that Chalifoux maintained
a significant relationship with the child.  The court was free to resolve
conflicts in the testimony and reach this conclusion.  But to hold that this
finding supports a name change ignores the fact that Brittain also maintained a
significant relationship with the child as the custodial parent.  When both
parents maintain a relationship with the child, this fact does not weigh in
either parent’s favor.  See In re Iverson, 786 P.2d 1, 3 (Mont. 1990)
(Barz, J., dissenting) (reasoning that the father’s acknowledgment of paternity
and intent to seek visitation did not favor changing the child’s name because the
mother likewise acknowledged maternity and assumed the day-to-day
responsibility and care for the child); see also In re J.K., 922 S.W.2d
at 223 (finding an abuse of discretion when the trial court changed the child’s
surname from the father’s to the mother’s because, even though the father did
not request or obtain visitation and did not intend to develop a relationship
with the child, there was no evidence that using the father’s surname would be detrimental
to the child).  Here, both Brittain and Chalifoux maintained a significant
relationship with the child.  Chalifoux may be commended for promptly asserting
and establishing his paternal rights and obligations, but this fact does not
support changing the child’s name.
3.      Parents’
assurances to not change name
We assume that this factor from the Dallas Court,
“assurances by the mother that she would not change her name,” is intended to
apply to either parent because the best interest of the child would be served
by no further anticipated name changes.  In re Guthrie, 45 S.W.3d at
725–26.  Here, Chaifoux offered no evidence regarding whether he would change
his surname.  Brittain offered evidence that she would not change her surname
if she ever married in the future and that she would not change either of her
sons’ names.  There was no evidence favoring a name change.
4.      Length
of time and identity with name
This factor is neutral.  The child was less than one
year of age at the time the court ordered a name change.  The mere short-lived
use of a name does not support a finding that a change would be in the best
interest of the child even though the opposite would weigh against a name
change.  Neither party presented evidence that the child at this age could
identify with one of the surnames.  
5.     
Child’s preference and maturity
This factor is also
neutral.  Although a child’s preference is an extremely significant factor for
older children,[13]
H.S.B. was not old enough to express a preference for either name.  Chalifoux
could present no evidence to show that the child preferred a name change. 
However, the absence of evidence on this factor neither helps nor hurts the
analysis.
6.     
Motives of parents
Again, this factor is
neutral and does not support a name change.  Both Chalifoux and Brittain
presented evidence that they were motivated by the child’s best interest, and
neither party presented any evidence to suggest the other party had other ill
motives.  Chalifoux’s conclusory testimony that he thought using the paternal
surname would be in the child’s best interest was not itself evidence of best
interest.  See Vazquez v. Vazquez, 292 S.W.3d 80, 85 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (holding that there was legally insufficient
evidence to support the trial court’s conservatorship ruling because the
mother’s conclusory opinion that the conservatorship would be in the best
interests of the children did not rise to the level of competent evidence).
Conclusion
Chalifoux, as the parent seeking the change, needed
to provide some evidence that a change would be in the child’s best interest or
that Brittain’s surname would be detrimental.  He did not identify any
particular reason why keeping the Brittain surname would be detrimental or
harmful to the child, and he presented no evidence on whether the name change
would help avoid embarrassment or confusion for the child, whether either name
was more or less respected in the community, whether the child would be more
likely to associate with a family unit using the Chalifoux surname, or whether
Brittain desired to impair the father–son bond.  Accordingly, Chalifoux
presented legally insufficient evidence to support a finding that a name change
would be in the child’s best interest, and the court abused its discretion in
ordering the name change.  See In re M.C.F., 121 S.W.3d at 897–99
(finding an abuse of discretion when the trial court changed the child’s
surname from the mother’s to the father’s because the father presented no
evidence and the mother presented evidence to the contrary; for example, the
child would be part of an extended family unit that used the mother’s surname,
the father had no family or community ties in the area, the father’s misconduct
made the name less respected, and the mother made assurances to keep her last
name if she remarried).
Brittain’s second and third issues are sustained.  We
reverse the portion of the trial court’s order granting the name change and
render judgment that the child’s surname shall remain Brittain.
 




                                                                                    
                                                                        /s/        Sharon
McCally
                                                                                    Justice
 
 
 
Panel consists of Justices Anderson,
Seymore, and McCally.




[1]
The court initially ruled from the bench that the child’s surname could be
hyphenated as Brittain–Chalifoux, but the final order included only the surname
Chalifoux.


[2]
The trial court in this case only made the express finding that changing the
child’s surname to Chalifoux would be in his best interest—there was no mention
of good cause.  Brittain concedes that the trial court’s best interest finding
incorporates a finding on good cause.  Although “best interest” is the
applicable standard when a person seeks to change the name of a child
generally, Tex. Fam. Code Ann. §
45.004(a)(1) (West Supp. 2009), in a suit affecting the parent–child
relationship, a child’s name may be changed only if the requesting party shows
“good cause.”  Tex. Fam. Code Ann.
§ 160.636(e) (West Supp. 2009); see also Tex. Fam. Code Ann. § 160.002 (West 2008) (explaining that a
provision in this chapter prevails over conflicting law).  The Fort Worth and
Dallas Courts of Appeals have held that “good cause” and “best interest” are
distinct concepts, and a parent seeking to change a child’s name under section
160.636(e) must establish both good cause and best interest.  See In
re S.M.V., 287 S.W.3d 435, 447 (Tex. App.—Dallas 2009, no pet.); In re
M.C.F., 121 S.W.3d 891, 894–95 (Tex. App.—Fort Worth 2003, no pet.). 
Because the best interest of a child will necessarily be considered a good
cause for changing the child’s name, we will evaluate the sufficiency of the
evidence for the best interest finding and presume that the trial court found
good cause on the same ground.  See In re S.M.V., 287 S.W.3d at 447
(citing Tex. R. Civ. P. 299). 
Chalifoux has never argued that there is a good cause for the name change other
than it would be in the child’s best interest.


[3]
Because we conclude that the evidence is legally insufficient in this case, we
need not address the standard for factual sufficiency.  Further, Justice Owen
has suggested that a factual sufficiency review is incompatible with the abuse
of discretion standard.  See In re Doe 2, 19 S.W.3d 278, 289 (Tex. 2000)
(Owen, J., concurring), discussed in A. Michelle May, Family Law
Appeals Distinguished, 15 App.
Advoc., no. 4, 2003 at 12, 13.


[4]
For a discussion of the history of surnames and gender equality, see, for
example, Gubernat v. Deremer, 657 A.2d 856, 859–67 (N.J. 1995), Doherty
v. Wizner, 150 P.3d 456, 457–59 (Or. App. 2006), and the authorities cited
therein.


[5]
Under the common law and before the nineteenth century in the United States,
children born out of wedlock were generally considered “the child of no one”
and received no parental surname.  Gubernat, 657 A.2d at 862, 864.  The
child had no mother or father recognized by law and could not inherit property;
thus, there was no reason to assign the child a surname.  Id. at 862.


[6]
See also Schroeder v. Broadfoot, 790 A.2d 773, 778 (Md. App. 2002) (“The
custom of giving children born out of wedlock their mother’s surnames likewise
derived from primogeniture and women’s secondary status in the legal and social
systems.”).


[7]
See, e.g., Beverly S. Seng, Like Father, Like Child: The Rights of
Parents in Their Children’s Surnames, 70 Va.
L. Rev. 1303, 1305 (1984) (noting that a presumption in favor of the
status quo favors fathers when children are born during marriage because most
American children born during marriage take their father’s surname); Merle H.
Weiner, “We Are Family”: Valuing Associationalism in Disputes over
Children’s Surnames, 75 N.C. L. Rev.
1625, 1724 (1997) (“Children of unmarried mothers customarily take their
mothers’ surnames, although many non-marital children take their fathers’
surnames.” (footnote omitted)); see also In re Wilson, 648 A.2d
648, 650 (Vt. 1994) (reasoning that the rule of maintaining the status quo
unless one parent can show that a change would be in the child’s best interest
“does not inherently reflect gender bias merely because the parents’ original
naming choice followed traditional custom”); Priscilla Ruth MacDougall, The
Right of Women to Name Their Children, 3 Law
& Ineq. 91, 116 (1985) (“As custodial parents of nonmarital
children, women, however, usually maintain their right to determine their
children’s names at least when the children have been given a non-paternal name
on their birth certificates or in early infancy.”); Weiner, supra, at
1631 (concluding that all three of the modern approaches—a presumption favoring
the status quo, the custodial parent presumption, and the best interest test—reflect
men’s conceptions of surnames, and thus, “none of the standards for resolving
name change disputes have totally eliminated the law’s patronymic bias”).


[8]
See also Newman, 433 S.W.2d at 423 (“[T]he basic consideration in a
proceeding of this character is the best interest of the child.  It is made so
by [statute], and it would be so in any event in the absence of a restraining
statute.”); 57 Am. Jur. 2d Name
§ 46 (2001) (“[T]he issue is not whether it is in the best interest of the
child to have the surname of the mother or father, but rather, whether the
interest of the child will be promoted substantially by changing his or
her surname.” (emphasis added)); 65 C.J.S.
Names § 24 (Westlaw Supp. 2010) (same).


[9]
See In re G.L.A., 430 N.E.2d 433, 434 (Ind. App. 1982) (“[T]he
trial court indulged an erroneous presumption that, absent extreme
circumstances, a child should share the surname of its biological father as
long as the father is contributing to its support.  This presumption is
incorrect because it ignores the proper standard, that of whether the change is
in the best interest of the child.”); In re Iverson, 786 P.2d 1, 3
(Mont. 1990) (Barz, J., dissenting) (reasoning that consideration of the
father’s support payments in determining whether the child’s name should be
changed “do[es] not even touch upon the child’s best interest”); Gubernat,
657 A.2d at 136–37 (noting the early American theory that “man owned what he
paid for, and could put his name on everything for which he provided money”;
omitting from the list of best interest factors the parents’ financial support
(quotation omitted)); Seng, supra, at 1330–34 (discussing the practice
of some courts to condition naming rights on a father’s financial support and
arguing that courts “should not reinforce the child-as-chattel mentality by
making the child’s name a piece of property to be bargained over”); see
also, e.g., In re Marriage of Schiffman, 620 P.2d 579, 583 (Cal.
1980) (omitting from list of best interest factors the parents’ financial
support); In re Saxton, 308 N.W.2d 298, 301 (Minn. 1981) (same); Bobo
v. Jewell, 528 N.E.2d 180, 185 (Ohio 1988) (same); Barabas v. Rogers,
868 S.W.2d 283, 287 (Tenn. App. 1993) (same); Hamby v. Jacobson, 769
P.2d 273, 278 (Utah App. 1989) (same); Daves v. Nastos, 711 P.2d 314,
318 (Wash. 1985) (same); MacDougall, supra, at 140 (“Although today most
judges would deny that fathers can purchase possessory rights in their
children, courts continue to connect fathers’ naming prerogatives with the duty
to support children, whether or not the fathers actually fulfill this duty.”); cf.
Tex. Fam. Code Ann.
§ 153.001(b) (West 2008) (“A court may not render an order that conditions
the right of a conservator to possession of or access to a child on the payment
of child support.”).  But see, e.g., In re Harris, 236 S.E.2d
426, 427 (W. Va. 1977) (“The weight of authority appears to be that absent
extreme circumstances a father who exercises his parental rights has a
protectable interest in his children bearing his surname and this interest is
one quid pro quo of his reciprocal obligation of support and maintenance.”).


[10]
“Simply stated, the corruption of blood principle is the label given to the act
of punishing a child for the illegal or immoral behavior of its parents.” 
Robert J. Shulman, Comment, Children of a Lesser God: Should the Fourteenth
Amendment be Altered or Repealed to Deny Automatic Citizenship Rights and
Privileges to American Born Children of Illegal Aliens?, 22 Pepp. L. Rev. 669, 705 (1995); accord
Max Stier, Note, Corruption of Blood and Equal Protection: Why the Sins of
the Parents Should Not Matter, 44 Stan.
L. Rev. 727, 728 (1992).  It originally applied to prevent the
inheritance of property and has been used to describe the punishment of
children born out of wedlock.  See Shulman, supra, at 705–07;
Stier, supra, at 736–37.


[11]
See U.S. Const. art. I, §
9 (prohibiting bills of attainder); U.S.
Const. art. III, § 3, cl. 2 (prohibiting the corruption of blood for
attainders of treason); Tex. Const.
art. I, § 21 (“No conviction shall work corruption of blood . . . .”); Stier, supra,
at 729 (“The notion that children should not be made to pay for the misconduct
of their parents, the Corruption of Blood Principle, is deeply embedded in the
Constitution.”); see also Misenheimer v. Misenheimer, 325 S.E.2d 195, 198
& n.2 (N.C. 1985) (noting that the common law doctrine of corruption of
blood was abolished by the United States Constitution; explaining that “[w]hile
it may be true that ‘the gods visit the sins of the fathers upon the children,’
this Court will not do so” (citations omitted)).


[12]
Comparison has been made to corporate branding: “Sometimes the reputation of a
brand suffers because of historical accident or mere coincidence.  When a brand
carries negative connotations because of mere happenstance, unbranding can
clarify the relationship between the tarnished brand and the firm’s goods or
services.”  Aaron Perzonowski, Unbranding, Confusion, and Deception, 24 Harv. J.L. & Tech. 1, 16 & n.82
(2010) (noting that the daughter-in-law of investment scam artist Bernie Madoff
petitioned a New York court to change her children’s names “to escape the
stigma of Madoff’s crimes”).


[13]
See Scoggins, 200 S.W.3d at 841 (finding no abuse of discretion in
changing the child’s name in part because the nine-year-old child preferred to
change her name); In re A.C.B., 2001 WL 931567, at *1 (finding no abuse
of discretion in retaining the mother’s surname in part because “the
intelligent and articulate eight-year-old expressed a desire not to change her
name”); Kelly, supra, at 64, 69–70, 80 (discussing the use of a child’s
preference in the best interest test, criticizing the custodial parent
presumption for failing to consider the child’s preference, and concluding that
the “wishes of a mature child should always be respected on a matter so basic
as his or her name”).


