Matter of Randolph L.S. (Sienna R.K.)

[*1] Matter of Randolph L.S. (Sienna R.K.) 2017 NY Slip Op 52003(U) Decided on March 28, 2017 Supreme Court, Wyoming County Mohun, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2017
Supreme Court, Wyoming County

In the Matter of the Application of Randolph L.S., II, Petitioner, For leave to change the name of his minor child from Sienna R.K. to Sienna R.S.



48723
Michael M. Mohun, J.

Randolph L. S., father of Sienna Rae K. (date of birth, April 4, 2014), having requested by petition verified on May 27, 2016, an order pursuant to Civil Rights Law §63 changing the name of his daughter from Sienna Rae K. to Sienna Rae S., and said petition having duly come on to be heard.

Now, upon the petition, together with the annexed exhibits, the affidavit in response of Emily R. K., mother of Sienna Rae K., sworn to on November 15, 2016, the reply affidavit of the petitioner, sworn to on December 8, 2016, and the supporting affirmation of Nicole M. Komin, Esq., attorney for the petitioner, dated December 8, 2016, and after hearing Nicole M. Komin, Esq., attorney for the petitioner, David M. DiMatteo, Esq., attorney for Emily R. K., and Jason C. Henskee, Esq., attorney for the child, Sienna Rae K., due deliberation having been had, the following decision is rendered.

The petitioner and Emily R. K. [the "mother"] share joint custody of Sienna Rae K. ["Sienna"]. The petitioner enjoys access to and extensive visitation with Sienna pursuant to a Family Court Order, but Sienna's primary residence is with her mother, her half-sister, Fionna Lee K. (date of birth, May 28, 2015) and her mother's husband, Sean K. The relationship between Mr. K. and Sienna's mother apparently began in 2009, but it was not until sometime after Sienna's birth that they married and Sienna's mother began to use "K____" as her own last name. Prior to the marriage, she used the name, Emily R. H. Sienna, however, received the last name "K____" at birth — apparently based on an acknowledgment of paternity executed at that time by Mr. K.

The petitioner's attorney charges in her affirmation that "Mr. K____ unlawfully signed the acknowledgment of paternity on the date of the child's birth, despite my client's efforts at proving paternity throughout the course of the Mother's pregnancy." She also reports that on December 9, 2014, as a result of DNA testing, the petitioner obtained an Order of Filiation declaring that he is, in fact, Sienna's father. Following this, on July 24, 2015, the Family Court issued the Stipulated Order awarding the petitioner and Sienna's mother joint custody of Sienna.

In his petition, the reason the petitioner gives for requesting the name change is, "I am the child's biological father." In his reply affidavit, he complains that Sienna's mother "purposely excluded" him from Sienna's life during the period prior to the time that he obtained joint custody through the Family Court. He argues that Sienna's mother, in opposing the name change, "essentially asks the Court to allow her to benefit from her own misfeasance. She intentionally kept the child from me and named the child after a man to whom she was not even married, with the intention of establishing a connection with only him, and to keep me away on purpose."

For her part, Sienna's mother in her affidavit denies excluding the petitioner from Sienna's early life. On the contrary, she alleges that, prior to September 2014, the petitioner "initially showed no interest in seeing the child resulting in the child being in mine and Sean K_____'s care one-hundred percent (100%) of the time." She objects to the proposed name change because "we are a family, my husband, Sienna Rae, Fionna Lee and I and have been since Sienna Rae's birth and should have the same last name."

In determining whether or not to grant a proposed name change for an infant, the Court must look to the best interests of the child. A court may change the name of an infant upon finding that "the interests of the infant will be substantially promoted by the change" (Civil Rights Law § 63). The petitioner, however, has made little effort to explain precisely why changing Sienna's last name will promote her best interests more than leaving it as it is. As mentioned above, the petitioner's stated reason for seeking the name change is simply that he is the father. According to his attorney, "[u]nlimited confusion results from a child having the same name as a man unrelated to her," and "[t]hus, the continued use of the surname K____ is harmful to the child." She does not describe, however, the nature of this allegedly harmful "confusion," nor does she state why this confusion would be more detrimental to Sienna than the confusion she will encounter if her last name is now changed so that it no longer matches that of her mother and her half-sister. Moreover, the Court is not persuaded that the continued use of the name K____ is harmful to Sienna. While the petitioner may object to the way in which Sienna first received the name "K____," it remains true that she obtains some benefit from sharing with her mother and her half-sister the same last name. In this regard, the Court notes that the petitioner has no legal entitlement to have his daughter receive his surname (Swank v. Petkovsek, 216 AD2d 920 [4th Dept., 1995]).

The Court listened carefully to the comments at oral argument of Mr. Henskee, the attorney for the child. Notably, he declined to say that it was his opinion that granting the proposed name change would promote Sienna's best interests more than leaving her name as it is. On balance, the Court finds that it has not been shown that Sienna's best interests will be substantially promoted by granting the proposed name change at this time. Accordingly, the petition shall be denied.

NOW, THEREFORE, it is hereby

ORDERED that the petition is denied.

Dated: March 28, 2017

_______________________________

MICHAEL M. MOHUN

ACTING SUPREME COURT JUSTICE