As part of a New Jersey divorce, a wife who took her husband’s name when they got married can take back her former name. But what about the children? Whose last name should they have?
There is now a case before the New Jersey Supreme Court which may answer that question, once and for all.
When Mr. Emma and Ms. Evans married and had children, the children were given their father’s last name of Emma. When the parents divorced in New Jersey, they agreed that they would have joint legal custody of the children, but Ms. Evans was named as “the primary residential/physical custodian” and Mr. Emma was named “the alternate residential parent.”
As part of a motion he filed after the divorce, the father notified the court that in school and health insurance records, his ex-wife had said that the children’s last name was “Evans-Emma,” and he asked that she be prohibited from doing that.
The mother responded by asking the court to change the children’s last name to her last name. The trial judge agreed to her request, because she was the parent of primary residence.
The father appealed. The New Jersey Appellate Division reversed the trial judge’s decision, noting that there should not be a presumption in favor of giving children their custodial parent’s last name when they were given their last name by their married parents at birth.
Among the reasons the Appellate Division gave for its decision was that when the parents divorced, they agreed to share joint legal custody and that they therefore recognized that neither one of them possessed a superior right on that important issue.
The fact that the New Jersey Supreme Court granted the father’s Petition to consider the case does not necessarily mean that it must issue a full Opinion. The New Jersey Supreme Court could simply adopt the Appellate Division’s Decision.
However, regardless of how it is decided, the New Jersey Supreme Court’s Decision could have an impact on New Jersey divorce cases, including each parent’s decision about whether to seek joint or sole legal custody of his/her children as part of the divorce.
Salvaggio Law Group LLC devotes its entire practice to New Jersey Divorce and Family Law matters, including issues relating to child custody and parenting time. If you want to talk, please call us at 973-855-3595 or fill out the Contact Form on our website.