Matter of Denington (Schaeffer)
Annotate this CaseDecided on December 9, 2014
Supreme Court, Suffolk County
In the Matter of the Application of Cheryl Denington, The Mother and Natural Guardian of Zachary Andrew Schaeffer, An Infant for Leave to Change His Name To Zachary Andrew Badenhoop.
20051/2014
CHERYL DENINGTON
Mother- Pro Se Petitioner
135 LOOKOUT DRIVE
SOUND BEACH, NY 11789
STEVEN SCHAEFFER
Father- Pro Se Respondent
110 NORTH COUNTRY RD
PORT JEFFERSON, NY 11777
Joseph A. Santorelli, J.
Upon the following papers numbered 1 to 14 read on this motion/ name change petition ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 3 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 4 - 7 ; Replying Affidavits and supporting papers 8 - 14 ; Other ; (and after hearing counsel in support and opposed to the motion) it is,
Petitioner, Cheryl Denington, moves for an order granting leave to change the name of her biological son Zachary Andrew Schaeffer, an infant, to Zachary Andrew Badenhoop. Respondent, Steven Schaeffer, opposes this application in all respects.
In support of this petition, petitioner has submitted, inter alia, notice of petition; petition; a proposed order; unsigned consent of parent form; affidavit of service; and birth certificate for the infant. The birth certificate indicates that petitioner is the mother and respondent is the father of the infant. Ms. Denington alleges in her petition that
Badenhoop is my maiden name. Steven hasn't been an active father since Zachary's birth. He hasn't seen the child since he was born. He hasn't paid child support for 3 years. 2014 is the only year he pays due to wages being garnished. Court granted him visitations. He never attempted. I was granted full custody.
In opposition, the respondent has submitted, inter alia, an affidavit in opposition; part 130 certification; verification; affidavit of service; and a copy of the Suffolk County Office of Child Support Enforcement Support Obligation Summary dated August 1, 2014. The support summary indicates that the total amount of child support due is $30,272.00, total paid is $15,937.39 and total amount still owed is $14,334.61. It also shows payments from May 7, 2012 to July 28, 2014. Respondent alleges that
Child support has been being paid since 5/7/12 to present day... recent payments almost double to catch up on past due support. Zachary is my son, and I want to be part of his life. I tried contacting Cheryl 3 times over the course of the last year with no reply... Zachary is one of only two sons to carry the Schaeffer name, and I so look forward to getting to know him and uniting him with his brother Steven.
In reply, the petitioner states that
My boyfriend has been raising Zachary since he was 3 months old. This is who he calls Daddy. Why should my son carry the last name of an absent parent? Badenhoop is my maiden name. It's my family name. He should carry the last name of the parent raising him, which is myself. He should share the same last name as his loving family.
"As in any case involving the best interests standard, whether a child's best interests will be substantially promoted by a proposed name change requires a court to consider the totality of the circumstances" (see Matter of Eberhardt, 83 AD3d 116, 123, 920 NYS2d 216 [2d Dept 2011]); citing Matter of John Phillip M.-P., 41 AD3d 720, 721, 839 NYS2d 502 [2007]; Matter of David Robert T., 10 AD3d 453, 780 NYS2d 912 [2004]; Matter of Cinquemani v Guarino, 290 AD2d 554, 736 NYS2d 623 [2002]; see generally Eschbach v Eschbach, 56 NY2d 167, 171, 436 NE2d 1260, 451 NYS2d 658 [1982]). "Among the myriad of factors or circumstances that a court may consider in determining whether a proposed name change substantially promotes the child's best interests, there are several that warrant special mention: (1) the extent to which a child identifies with and uses a particular surname; (2) the child's expressed preference, if of sufficient age and maturity to articulate a basis for preferring a particular surname; (3) whether the child's surname differs from the surname of the custodial parent; (4) the effect of the proposed name change on the child's relationship with either parent; (5) whether the child's surname is different from any of her siblings and the degree to which she associates and identifies with siblings on either side of her family; (6) whether the child is known by a particular surname in the community; (7) the misconduct, if any, of a parent, such as the failure to support or visit with the child; and (8) the difficulties, harassment, or embarrassment that the child may experience by bearing the current or proposed surname" (see [*2]Matter of Eberhardt, supra at 123-124; citing Matter of John Phillip M.., 307 AD2d at 318-319; Gubernat v Deremer, 140 NJ at 141-142, 657 A2d at 867-868; In re Wilson, 162 Vt 281, 285, 648 A2d 648 [1994]; In re Andrews By & Through Andrews, 235 Neb 170, 177, 454 NW2d 488 [1990]; Bobo v Jewell, 38 Ohio St 3d 330, 335, 528 NE2d 180 [1988]; In re Marriage of Schiffman, 28 Cal 3d at 647, 620 P2d at 583).
Civil Rights Law § 63 authorizes the Supreme Court to grant a petition to change a child's name where it is satisfied that "there is no reasonable objection to the change of name proposed," and that "the interests of the infant will be substantially promoted by the change." (Matter of John Philip M.-P., 41 AD3d 720, 839 NYS2d 502 [2d Dep't 2007]).
In In re Goldstein, 104 AD2d 616, 616, 479 NYS2d 385 [2nd Dept 1984], the Court held that "[d]epriving a child of his or her father's surname is normally a far-reaching action (see Matter of Pollack, 2 AD2d 756).". The Court further held that "[a]pplications for the change of an infant's surname are usually granted only where the natural father is guilty of misconduct, abandonment, or lack of support (see, e.g., Matter of Williams, 86 Misc 2d 87; Matter of Robinson, 74 Misc 2d 63; Matter of Fein, 51 Misc 2d 1012; Matter of Baldini, 17 Misc 2d 195; Matter of Wittlin, 61 NYS2d 726, 728)." (In re Goldstein, supra). "It is not the policy of this court to grant applications of infants for change of name, unless there is a compelling reason for it... It is better for them to wait until they have reached maturity" (see In re Maliszewski ex rel. Bowe, 162 Misc 2d 79, 80 [Sup Ct, Rockland County 1994]; In re Fein, 51 Misc 2d 1012, 1016 [Civ Ct, Bronx County 1966]).
In this matter the mother is requesting to change the infant's name to her maiden name, which she no longer uses. The Court does not find a compelling reason to grant this name change petition. The father is not "guilty of misconduct, abandonment, or lack of support". While he may be behind on his child support payments, it does appear as though payments have been made regularly through wage garnishments since 2012. It would be in the child's best interests to wait until he reaches maturity to change his surname. Therefore, this petition by Cheryl Denington for an order granting leave to change the name of Zachary Andrew Schaeffer, an infant, to Zachary Andrew Badenhoop, is denied.
The foregoing constitutes the decision and Order of this Court.
Dated: December 9, 2014_______________________________________
Hon. Joseph A. Santorelli
J.S.C.
XFINAL DISPOSITIONNON-FINAL DISPOSITION
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