Matter of Cruz
Annotate this CaseDecided on December 8, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-2037 Q C In the Matter of the Application of
against
Miosotis Cruz Also Known as Miosotis Cruz Fernandez as Parent of Minor Child Aimee Rose Pagan For Leave to Change Her Name to Aimee Rose Cruz, Appellant,
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph J. Esposito, J.), entered June 27, 2014. The order, after a hearing, denied a petition for a name change.
ORDERED that, on the court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CCA 1702 [c]); and it is further,
ORDERED that the order is reversed, without costs, the petition is reinstated, and the matter is remitted to the Civil Court for a new hearing.
In this proceeding, petitioner seeks to change the surname of her infant child, Aimee, from Pagan to petitioner's maiden name, Cruz. Aimee's father, Ricardo Cesar Pagan, did not submit written opposition to the petition. At a hearing on the petition, Mr. Pagan was absent but was represented by counsel, who had apparently requested an adjournment of the hearing and who also stated that Mr. Pagan opposed the petition. He failed, however, to state the basis for Mr. Pagan's objection to the proposed change of name; nor did he object to the denial of his request for an adjournment.
Petitioner, who apparently through inadvertence had not been sworn, was the sole person who presented evidence. Aimee was five years old at the time of the hearing. Petitioner recounted that she was Aimee's sole custodial parent, that Mr. Pagan had never provided any financial support for Aimee, and that Aimee had had no contact with Mr. Pagan for several years. Petitioner further stated that she had been physically abused by Mr. Pagan, that Aimee had been traumatized by witnessing one such incident, and that there had been orders of protection issued against Mr. Pagan. Petitioner asserted that Aimee believed her surname to be "Cruz," and that she was known at school by the surname "Cruz." She brought to court photocopies of a number of documents which were neither certified nor otherwise authenticated, and which the court properly did not consider (see CPLR 4539, 4540). Following the hearing, the petition was denied, upon a finding that petitioner had failed to demonstrate that the best interests of the child would be served by granting the proposed change of surname. In making that determination, the Civil Court noted that Aimee's use of the surname "Cruz" was of limited significance because she was too young to express a meaningful preference, and that no evidence had been presented that Aimee was commonly known by the surname "Cruz" or had siblings with that surname. The court also expressed concern that changing Aimee's surname could negatively impact the possibility of a future relationship with her father.
In the absence of any reasonable objection to the proposed name change by Mr. Pagan or his attorney (see Civil Rights Law § 63; see also Matter of Eberhardt, 83 AD3d 116, 121 [2011]), the Civil Court properly considered whether Aimee's interests would be substantially promoted by the proposed name change (see Civil Rights Law § 63; see also Matter of Eberhardt, 83 AD3d at 123). At the hearing, petitioner stated, among other things, that Aimee lived only with her and had never lived with Mr. Pagan, that Mr. Pagan had never provided financial support for Aimee, and that Mr. Pagan had not had contact with Aimee for the prior four years. She said that she was seeking the name change because Aimee only knew herself as "Aimee Cruz," and that for school and other activities, she wished to conform Aimee's legal name with the name she regularly used.
"Depriving a child of his or her father's surname is normally a far-reaching action" (Matter of Goldstein, 104 AD2d 616, 616 [1984]). However, the misconduct of a parent, including the failure to visit or support a child, is a justifiable basis for changing a child's surname (id.). For young children, such as Aimee, if they identify with and use a particular surname, it may also be appropriate to grant a petition for a name change when the child is of an age to begin school, rather than waiting until the child is old enough to express a preference (see Matter of Learn v Haskell, 194 AD2d 859 [1993]; see also Matter of Shawn Scott C., 134 AD2d 345 [1987]). In our opinion, the Civil Court failed to accord sufficient weight to those factors, which tended to militate in favor of granting the petition, and accorded undue weight to its concern, which had not been raised by Mr. Pagan or his attorney, that changing Aimee's surname might negatively impact the possibility that she would develop a relationship with her father in the future. In light of the foregoing, we conclude that a new hearing is required, especially since there was neither sworn testimony at the hearing on this petition, nor were the documents proffered by petitioner properly authenticated.
Accordingly, the order is reversed, the petition is reinstated, and the matter is remitted to the Civil Court for a new hearing.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: December 08, 2015
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