Matter of Kobra (Hossain)

[*1] Matter of Kobra (Hossain) 2012 NY Slip Op 52061(U) Decided on October 26, 2012 Civil Court Of The City Of New York, Kings County Thompson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2012
Civil Court of the City of New York, Kings County

In the Matter of the application of Tamannatul Kobra As Parent(s) of Heemika Hossain (infant) For Leave to Change His/Her Name to Himika Himadri. In the matter of the application of Tamannatul Kobra As Parent(s) of Siratul Muntaha Hossain (infant) For Leave to Change His/Her Name to Oporajita Neeladri.



000521/2012



Appearances by:

Plaintiff/Applicant Pro-Se

Harriet L. Thompson, J.

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion ..................................... ..

Order to Show Cause and Affidavits Annexed _____________

Answering Affidavits ..__________

Replying Affidavits ._____________

Exhibits _____________

Other Name change petitions............................____2_______

__________________________________________

The Petitioner, Tamannatul Kobra, the mother of two children, seeks leave of the court through the submission of two petitions to change the names of her children: Heemika Hossian, a four year old female and Siratul Muntaha Hossain, a nine year old female. The two petitions [*2]involve the consent of both parents, Tamannatul Kobra and her husband, Mosharaf Hossain.

COURT DETERMINED CONSOLIDATION

As a general rule of law, consolidation of legal proceedings are generally favored by the courts. CPLR §602(a) grants the trial court broad discretion to consolidate actions or proceedings that involve common questions of law and facts. Consolidation is proper to avoid unnecessary duplication of trials, saves unnecessary costs and prevents the possibility of injustice arising from divergent decisions based upon the same parties with the same underlying facts. (Citations omitted.) Just as important, there is a preference for consolidation in the interest of judicial economy particularly when there is no prejudice to a substantial right of a party . See Hill v. Smalls, 49 AD2d 724, 373 NYS2d 134, appeal dismissed at 38 NY2d 893, 382 NYS2d 749, 346 N.E.2d 550. See also Raboy v. McCrory Corp., 210 AD2d 145, 147, 621 NYS2d 14; Firequench, Inc., Kaplin, 256 AD2d 213, 682 NYS2d 369.

The two petitions in this case involve the consensual requests of two married adults for the name changes of their two biological children which is sufficient to lay the necessary foundation to meet the requirement of common questions of law and facts and therefore, no prejudice can be asserted by any party. Accordingly, this court, sua sponte, consolidates the above petitions for this determination.

PROCEDURAL AND FACTUAL BACKGROUND

On January 20, 2009, Mosharaf Hossain, with the consent of his wife, Tamannatul Kobra, submitted a petition to the Civil Court in Kings County to change the name of his daughter, Sidratul Muntaha, then six years of age, to Sidratul Muntaha Hossain. On that same date, the Hon. Dawn Jiminez was satisfied that the petition was true and that the interest of the child was substantially promoted by the infant child assuming the surname of her biological father and issued an order granting the name change.

In this case, on May 10, 2012, Tamannatul Kobra, petitioned the Court for approval to change her eldest daughter, Sidratul Muntaha Hossain, to a new assumed name of Oporajita Neeladri and her youngest daughter, Heemika Hossian to a new assumed name of Himika Himadri. In paragraph 9 of both petitions, Tamannatul Kobra states that "I do not like the name" as the reason for the name change.

When the application was first presented to the undersigned judge in Special Term II on May 10, 2012, the Applicant stated that she wanted to change the children's name for passport purposes. Subsequently, in a teary eyed and uncontrolled emotional appeal to the undersigned, the Applicant exclaimed that she was desperate to change the names of her children because the neighborhood children laughed at them and made fun of them because their surname is commonly referred used by Muslims. [*3]

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

After considerable legal research and substantial contemplation of the facts and circumstances in this proceeding, the Court makes the following findings of facts and conclusions of law.

The right of a person to change her or his name is deeply rooted in the common law of this nation. For centuries, at common law, the courts have recognized the right of any individual to change his or her name at will without legal process provided that the change is not made to deceive or perpetuate a fraud on third parties including the avoidance of legal obligations.

The enactment of Civil Rights Law §60 and 63 established the statutory and procedural framework for both adults and infants to petition the court to change their name and to make such name change a public record. For infants, a parent or guardian may petition the court on their behalf. Section 63 provides in relevant part that a parent may petition to change the name of a child where the facts substantiate that "the petition is true", "there is no reasonable objection to the change of the name proposed" and like the case at bar, if the petition is to change the name of the infant, that "the interests of the infant will be substantially promoted by the change". In a petition for a name change of a minor, the court stands in loco parentis to the minor and is obligated to protect the minor's best interest. Therefore, a court is duty bound to examine all the facts, including the reasons expressed for the proposed name change. In re Conde, 186 Misc 2d 785, 720 N.Y.S. 727 [2000].

The Court of Appeals, in Smith v. United States Casualty Co., 197 N.Y. 420, 429, 90 N.E. 947, 950, held that the statutory framework in Human Rights Law Sections 60 and 63 "does not repeal the common law by implication or otherwise, but give an additional method of effecting a change." (See also In re Conde, supra; Application of Stempler, 110 Misc 2d 174;Matter of Anonymous, 57 Misc 2d 813, 814).

In addition, it has been firmly established that in the absence of a demonstrable reason, an application for a name change should be granted by the court. (See, Matter of Madison, 261 AD2d 738 [3d Dept.]; Matter of Gutkaiss, 11 Misc 3d 211, 806 N.Y.S.2d 402). This court, like others, support the rights of any individual to assert this common law right, and statutory right so long as there is no fraud, misrepresentation, or interference with the rights of others. Matter of J.O.T., 120 Misc 2d 817, 818, 466 N.Y.S.2d 636 [1983].

As a general rule, in the absence of any objection and in compliance with the statute, a child's parent should be better judges than the courts in determining what is in the best interests of their children. However, this Court wholeheartedly adopts and stands in firm accord with the excellent analysis of the Hon. Philip Straniere, where he so aptly stated in a recent denial of a name change in the matter of the Application of Nawadiuki, 2012 WL 4840800 (NY City Civ. Ct). He stated that , "[t]he easy response to any name change is to just "grant" it. And I'm quite sure most of my colleagues would agree that so long as the person wants to change their name we should approve the petition as if this were some ministerial act. Unfortunately, the statute requires a judge to approve a name change undertaken by this method rather than through the common law. This means that factors other than the wants of a petitioner must be analyzed including how the proposed name change will be view by third parties. At times, the petitioner must be told your application is [*4]unacceptable." Even more poignantly he reasoned that "[i]f the legislature did not want judges to use their discretion, the statute would allow people to fill out an application, pay a fee and have the clerk issue a certificate of a new name as if it were a driver's license." After a sound analysis of religious history, public perception and the constitution mandate of the separation of church and state, Judge Straniere properly denied the application of this family to change their respective names to "ChristIsKing and "JesusIsLord".

It has also been repeatedly held that neither parent has a superior right to determine the surname of the child and the question is always whether the "best interests of the child" will be served by the proposed change (See Matter of Cohan v. Cunningham, 104 AD2d 716, 480 N.Y.S.2d 656 [4th Dept.,1984] denying an application to change a name on the grounds that neither parent has a superior right to determine the surname of the child and confirming that the legal question in name change applications for infants is always whether the best interests of the child will be served by the proposed change; Matter of Caraballo, 13 Misc 3d 1229(A), NY Slip Op. 52054 (U), 2006 WL 3041684 [2006] finding that sharing the surname by the child with the parent she or he lives with is a legitimate point of concern because it minimizes embarrassment, harassment and confusion in school and social contacts (Matter of Shawn Scott C, 134 AD2d 345, 520 N.Y.S.2d 821 [2d Dept., 1987; Learn by Houck v. Haskell, 194 AD2d 859, 598 N.Y.S.2d 595 [3d Dept., 1993]; Mercado v. Townsend, 225 AD2d 555, 638 N.Y.S.2d 762 [2d Dept., 1996]). See also the Matter of Mack, 15 Misc 3d 229, 828 N.Y.S. 805, 2007 NY Slip Op. 27022, which denied the change of the surname to the mother's name based on insufficient evidence of the lack of involvement of the father in the life of the child; Matter of Bell, 67 AD3d 676, 886 N.Y.S.2d 909 [ AD2d Dept., 2009] finding that the father failed to sustain his burden of establishing that the child's interests would be substantially promoted by changing her surname and that there was no reasonable objection to the proposed name change (See Civil Rights Law, 63; Matter of Wilson v. Kilkenny, 44 AD3d 676, 841 N.Y.S. 898; Matter of David Robert T., 10 AD3d 453, 780 N.Y.S.2d 912; Matter of Cinquemani v. Guarino, 290 AD2d 554, 736 N.Y.S.2d 623; Matter of Cassidy Lynn M., 289 AD2d 245, 734 N.Y.S.2d 476; Matter of Mercado v. Townsend, 225 AD2d 555, 638 N.Y.S.2d762). Likewise, in Wilson v. Kilkenny, 12 Misc 3d 1152(A), 2006 WL 13220691 (N.Y.Sup), Justice Shack denied the application of a father to change the child's name to his surname since "[t]here is also a reasonable objection to the change since the child lives with his mother and sharing her surname minimizes embarrassment, harassment, and confusion in school and social events."

In contrast, the Appellate Division, First Department in the Matter of Havell, 304 AD2d 347, 760 N.Y.S.2d 407, 2003 NY Slip Op. 12711, granted the applicant name change based on the fact that it was well documented that " the father committed a brutal assault against his former wife to which the children were witnesses and the welfare of the children will be substantially promoted by dissociation from the "shame and disgrace of [their] father's crime". The court took special notice of the fact that two of the older children had already changed their names to their mother's surname and with the court's approval, all of the other children will now bear the last name of their mother ...thus eliminating the potential for confusion or ridicule (citing the Matter of Learn v. Haskell, 194 A.D2d 859, 860, 598 N.Y.S.2d 595).

In the instant case, the applicant seek to change her nine year daughter's name for the second [*5]time in a period of three years. The application seeks to change the child's name to a completely different name. She proposes to change the first name and surname of her daughter from Siratul Muntaha Hossain to Oporajita Neeladri. The child would not bear any surname that would identify her with either parent. Next, she petitions the court to change the youngest child's name from Heemika Hossian to Himika Himadri. She is four years old.

Both children would not have any name that would identify them as the children of either parent-not the surname of either parent or any name that would identify them as relatives or even sisters for that matter.

Notwithstanding the applicant's assertions that in Bangladesh, India, it customary for everyone in "a typical household" to have completely different names, both of these children are American-born citizens and have adapted, embraced and are a part of our American culture. It is certainly not common on the shores of this nation that the "typical household" members have completely different names. To the contrary, even in non-traditional families or families with single heads of household in which children maybe born out of wedlock, the children customarily have the surname of the custodial parent. As supported above by case authority, the test applied by the Appellate Courts, Supreme Courts and Trial Courts for name change petitions is not whether it is in the best interests of these children to have the surname of the mother or father but whether the best interests of these child will be promoted by changing their first and surnames.

This court, in reliance on case authority in both judicial departments, will not deviate from that which is deeply rooted in the American Diaspora which definitively supports our social customs and long standing accepted practices in New York as well as many other states for family members to share in one of the custodian's parents name. This common practice is to "alleviate confusion in the child's day to day life and obviate the need to explain to school administrators and teachers, doctors, insurance companies and government agencies" why the children have completely different names from their parents and from each other. Matter of Thurman, 5 Misc 3d 1010(A), 798 N.Y.S.2d 714, 2004 WL 2495715, 2004 NY Slip Op. 51323(U)[NYC Civ. Ct., Kings County, 2004];Wilson v. Kilkenny, 12 Misc 3d 1152(A), 819 N.Y.S.2d 214, 2006 WL 13220691 [N.Y.Sup 2006]).

This court can only imagine the confusion and hardship that these children would have as they grow older and interact with other children and others if this petition were granted. In the current climate in this state and the nation where children harass each other, both physically and mentally, and bully each other in person and in cyberspace, it is the view of this court that this proposed name change will make the lives of these young girls absolutely miserable and unreasonably venerable to all kinds of probing questions, embarrassment, ridicule, and humiliation. Matter of Learn v. Haskell, 194 A.D2d 859, 860, 598 N.Y.S.2d 595).

This court wishes to express even greater concern for the nine year old child. She has been in school for the past three years and is known by her friends, teachers, classmates, doctors, dentists and other professionals as Siratul Muntaha Hossain. The first name change was reasonable under those circumstances which only added the surname of her biological father and was approved by the court. This name change is clearly a deviation from customary practices that are recognized by the courts. More importantly, this young girl has a vested interest in her present name. At this influential pre-teen stage of her personal and social development, it is crucial for her to have stability and to maintain a strong self-identity. To change her name now will cause her harm that is truly immeasurable. [*6]

Furthermore, this court finds that this proposed name change is not based on truth. The Applicant has proffered three completely different explanations for the request to change the names of her children. This court does not find the Applicant credible or trustworthy. The court further finds that the proffered explanations for the name changes are disingenuous and leaves the court only to speculate as the actual reason for the name change; it appear to be to deceive or perpetuate a fraud on some third parties including the avoidance of legal obligations which is condemned by the courts.

Even though the Petitioner claims that her children were made fun of because their surname is "Hossain", this court has serious doubts as to the truth of this assertion. Even if it were true, such a claim is not a legal or factual basis to change the names of her children. Therefore, this court concludes that this name change application does not promote the best interests of the children particularly since it seeks to change their names to completely different names from their respective parents and from each other as siblings.

Based on the foregoing, the petition to request the first name and surname of the children is denied with prejudice. When the children reach the age of majority, which for name change purposes is eighteen years of age, in the exercise of their own discretion and judgment, they may elect to petition the court for a name change for themselves.

The Clerk of the Court shall enter this decision and order to reflect that any further names changes by this applicant shall reflect that this application was denied with prejudice.

This constitutes the decision and order of this court.

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DateHON. HARRIET THOMPSON

Judge of the Civil Court