Matter of Caraballo

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[*1] Matter of Caraballo 2006 NY Slip Op 52054(U) [13 Misc 3d 1229(A)] Decided on October 26, 2006 Civil Court Of The City Of New York, New York County Mendez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2006
Civil Court of the City of New York, New York County

In the Matter of the Application of Antonio Caraballo.



501726nc06



Antonio Caraballo, Petitioner Pro-Se,

Gerry M. Wendrovsky, Esq.

Attorney for Respondent.

Manuel J. Mendez, J.

Factual Background

Petitioner, Antonio Caraballo the non-custodial parent of the minor Mark Anthony U., filed a petition to change the individual minor's name to Mark Anthony Caraballo on August 22, 2006 ( See Petition on file). The child was born on September 19, 1992 and is currently 14 years old. Petitioner notified Respondent, the mother and custodial parent of the proposed change of name ( See Civil rights Law § 62)and requested her consent, which Respondent denied( See Affidavit of Petitioner Annexed to petition). Petitioner provides this court as a reason for his application to change the minor's name " It is his birthright to carry his father's last name, not his mother's father's last name."

A hearing was held by this court on October 23, 2006. At this hearing Petitioner appeared pro-se, Respondent appeared and was represented by counsel. At this hearing both parties had a full opportunity to address the court, petitioner stating his position as to why his application to change the minor's name should be granted, Respondent stating her position as to why it should be denied with prejudice.

Petitioner addressed the court and stated: " I am the father of the child and want to change the minor's name because I want my child to have my last name. When he was born I didn't sign the papers and she didn't want to change his name. The child is 14 years old. He is with me Monday through Wednesday, the rest of the time he is with his mother. The child was in agreement to have his name changed two years ago." On cross examination counsel for the Respondent [*2]submitted seven items which were admitted in evidence as Respondents "A through G". It was established

that Petitioner and Respondent were married in the City of New York on March 31,1991 [Certificate of Marriage , Resp. A], The child Mark Anthony U. was born on September 19,1992 [Birth certificate, Resp. B], Petitioner filed a petition for paternity with the Family Court on August 20, 2002 [ Petition No.: 02812/02. Resp. C], an order of filiation was entered by the court on September 27,2002 [Order, Resp. D], Petitioner filed a petition for visitation on September 27,2002 [Petition No.: V-10738/02, Resp. E], Respondent obtained an order of support on November 12, 2002,which orders petitioner, the non-custodial parent, to pay $83.00 weekly as his basic child support obligation [Order No.: F-03342/02, Resp. F].

On re-direct Petitioner addressed the court as follows: " I am the father and he has a right to have my name. I have always been in my son's life and I have a right to give him my name. I tried to get her to do the right thing and she refused so I have to take this step."

Respondent on direct examination stated "I am the custodial parent, the child resides with me and that it would be inconvenient and create confusion with school, doctors, etc., to have the child's surname changed to that of the father. Furthermore, the child does not want to have his name changed. I tried to get him to come and he said he didn't want to come because he didn't want a confrontation, and didn't want to be seen as taking sides." Following this Respondent submitted a signed notarized statement from the child [Resp. G ]. The statement states:

"to whom it may concern, let it be stated in this letter that I, Mark A. U. want to keep my last name the way it is now and has been for the last fourteen years." dated October 20,2006 notarized by Neil Bernstein NY State Notary Public

No.: 01BE5043933, qualified in Kings County, Commission expires May 15,2007.

Respondent further stated that the child signed without any coercion on her part.

Following the hearing the court reserved decision and ordered that the child be produced for an in camera conversation with the court. On October 24,2006 this court met with the child in chambers to ascertain whether he had been coerced into signing the statement. Following the brief meeting in Chambers this court is convinced that the child was not under any duress or coercion and that he signed the statement knowingly, willing, freely and voluntarily, and that the statement expresses his will to retain his present surname. [*3]

Legal Analysis

Neither parent has a superior right to determine the surname of the child, and the question is always whether the "best interest of the child" will be served by the proposed change ( Matter of Cohan v. Cunningham, 104 AD2d 716,480 NYS2d 656 [4th Dept. 1984]; Civil Rights Law §63). The sharing of a surname by a child with the parent he or she 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 NYS2d 821 [2nd. Dept. 1987; Learn by Houck v. Haskell, 194 AD2d 859, 598 NYS2d 595 [3rd. Dept. 1993]; Mercado v. Townsend, 225 AD2d 555, 638 NYS2d 762 [2nd. Dept. 1996]).

" Having the child share the custodial parent's surname can 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 child has a different name than that of the parent who must deal with such entities on a regular basis. As a child grows older, enters school, and comes to be known by his teachers, classmates and friends by the name he was given originally, the more proprietary interest a child has in keeping that name as an indicia of his own, not the parent's identity. By the time the child has reached the age of 10 or 12 he may be more invested in maintaining the name by which he has been known or may be able to articulate his own desire as to his surname."( Matter of Thurman, 5 Misc 3d 1010(A), 798 NYS2d 714, 2004 WL 2495715, 2004 NY Slip Op. 51323(U) [NYC Civ. Ct. Kings County 2004]; Wilson v. Kelkenny, 12 Misc 3d 1152(A), 819 NYS2d 214, 2006 WL 1320691 [NY Sup. 2006]).

It is undisputed that the child has resided with Respondent, the custodial parent, for 14 years. Changing his name to that of his father's would inconvenience Respondent who must explain to others that a child is hers despite their differing surnames. Furthermore, the child has a vested interest in keeping his mother's surname and has expressed that desire to the court [See Respondent's "G" in evidence]( See Matter of Thurman, Supra; Wilson v. Kelkenny, Supra). When an infant does not desire a change of name, denial is warranted as his preference is decisive and any objection on the part of a parent would be regarded as futile( Matter of Harris, 43 NYS2d 521, [1943]). [*4]

Conclusion

Petitioner is the non-custodial parent. Respondent is the custodial parent. Petitioner seeks to change the minor's surname. The Respondent objects. At the hearing Petitioner failed to established that the child's interest would be substantially promoted by a name change. Respondent has objected to the change, as has the minor. This court finds that the minor's preference to keep his present surname, coupled with the inconvenience and confusion that would arise with the name change are factors that weigh heavily towards denial of this petition.

Accordingly, for the foregoing reasons, it is the decision and order of this court that the petition to change the minor's name is denied with prejudice.

This constitutes the decision and order of the court.