In Re: Mattoon, No. S0822-03 CnC (Katz, J., Oct. 30, 2003)

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STATE OF VERMONT                           SUPERIOR COURT
Chittenden County, ss.:                    Docket No. S0822-03 CnC



IN RE DELILAH ROSE MATTOON AND EZEKIEL ROBERT
MATTON

                                 ENTRY
       (Testimony of children and appointment of guardian ad litem)

       Petitioner seeks to change her children’s surname to their
stepfather’s, which she has also adopted. The biological father opposes this
request. To establish that this change is in the best interests of the children,
Petitioner seeks to introduce the testimony of the children and requests the
appointment of a guardian ad litem .

       When a parent against the wishes of the other petitions to changes
their children’s surname, we must examine a number of factors to
determine if the change is in the “best interests of the child.” In re Wilson,
162 Vt. 281, 284 (1994). Evidence of children’s surname preference is
considered by a number of jurisdictions to be relevant but not controlling.
A.L.R. 5th 697 Names of Children § 13. Such a preference is relevant only
to the extent that it will assist us in making the determination, Lawerence
v. Lawerence, 538 A.2d 779, 782 (Md. App. 1988), and is within our
discretion. In re Wilson, 162 Vt. at 285. Through evidence from petitioner
and her witnesses, we expect to learn of the children’s preference and their
reasons for it. See generally Pet. Mot. to Recons., June 12, 2003. Since
this information is available, we do not find the children’s testimony
necessary. Unless the parties can persuasively demonstrate relevant
information that only the child can give, we find that such testimony would
needlessly expose the children to a hostile situation between their parents.

       It is also likely that the children’s ages will disqualify their
testimony. While the statute controlling this area does not create a
presumption, the fact that the legislature only begins to requires the minors
consent at age 14 suggests that there is skepticism toward the “preference”
of children under 14. 15 V.S.A. § 812; see also Christensen v. Christensen,
941 P.2d 622, 625 (Utah 1997) (finding it unnecessary to take testimony
from a 9 year old child concerning her preference); Lazow v. Lazow, 147
So.2d 12, 14 (Fla. Ct. App. 1962) (questioning the ability of a 12 year old
to form an “independent” preference). In light of such skepticism, we are
reluctant to pursue or encourage travel down such evidentiary avenues.

       Guardian ad litems will be appointed only where there is a statutory
call, V.R.F.P. 7(c), or a demonstrable need. Meyer v. Meyer, 173 Vt. 195,
201 (2001). Petitioner has not demonstrated that the children’s best interest
are unrepresented by either herself or the children’s father. We decline to
appoint one at this time.

      After taking pertinent testimony from adults, we will consider
whether there is some gap requiring testimony from the children.
Dated at Burlington, Vermont________________, 2003.




                               ________________________
                               Judge
