Merit Decision. Court Decides Having Mother’s, not Father’s Last Name is in Best Interest of Child. D.W. v. T.L.

On December 6, 2012, the Supreme Court handed down a merit decision in D.W. v. T.L.,  2012-Ohio-5743. Writing for a unanimous Court, Justice Cupp held that under the Court’s existing precedent, the test in a name change case is the best interest of the child, which in this case was to keep the mother’s name.  In the subtext (and one of the headnotes) is the holding that gender-based stereotypes cannot be the basis for ordering a name change.  That was one of the mother’s proposed propositions of law.

Case Background

T.L. and D.W. an unmarried couple, had a child, L.D.W.L., (called L. here for simplicity, since the Supreme Court is now only using initials in these circumstances) which includes the father’s full name as the second and third names, and the mother’s surname at the end. The child’s birth certificate bears the name L.D.W.L. The birth certificate was signed by both parents  after much discussion.

The father did not live with L. for the first eighteen months of L’s life. L. lived with his mother and half-sister –all with the same last name. When L. was eighteen months old, his father moved in, however, he was deployed overseas for a time and subsequently stationed in another city. When L. was four, his parents separated.

The father filed a complaint in the Clinton County Juvenile Court to determine paternity and establish parental rights and responsibilities.  Eventually, the parties agreed the mother would be the legal custodian and residential parent. The father received visitation rights. The only issue the parents could not resolve was L’s last name.   The father petitioned the court to have L’s surname changed to match his own.

The Name Change Hearing

Both parents testified in front of a magistrate at the name change hearing.  Testimony established that L. had used his mother’s surname since birth, and had always lived with his mother and half-sister who also shared the same surname.  His father was actively involved in L.’s life and provided financial support for him.

Father’s Reasons for Requesting the Name Change

L’s father testified that it would be “huge” to him for his son to have his name. He wanted his son to have something of his while he was deployed, in case he was killed in combat. He opined that a name change would not be harmful to L., and would be meaningful to both of them.

Mother’s Reasons for Opposing the Name Change.

L.’s mother testified that L.’s full name already included his father’s name. She emphasized L.’s developmental delays at school, and the fact that he did not adjust well to change. L.knew his name, was learning how to write it, knew it was the same as his sister’s, and lived in a residential unit where everyone had the same last name.  She opined that it would be detrimental to L.’s interest to have a new last name at this point.

Lower Court Rulings

The Magistrate granted the father’s name change request, finding that it would be in the child’s best interest.  The trial court affirmed this ruling, overruling the mother’s objections. The Twelfth Appellate District found that the trial court did not abuse its discretion in granting the father’s name change petition. L.’s mother subsequently appealed. The Supreme Court of Ohio accepted jurisdiction, reversed the lower courts, and ordered the trial court to enter final judgment denying the name change. Read the oral argument preview here, and the analysis of the oral argument here.

Useful Precedent in Understanding this Decision

Bobo v. Jewell, 38 Ohio St.3d 330 (1988).

Courts are to use a best-interest-of-the-child test in determining whether to allow a name change. Bobo established a multi-factor test to determine the surname of a child when the parents have never been married. Bobo prohibits trial courts from giving primary weight to the father’s interests in having the child bear his surname in conducting a best-interest-of-the child analysis. The Bobo Court established that while it may be custom to have the child bear the father’s surname, the mother has at least equal interest in the child bearing her surname.

In re Willhite, 85 Ohio St.3d 28 (1999).

Willhite extended and refined the Bobo factors, finding that the best interests of the child favored adopting the residential parent’s surname. The refined Bobo factors include: 1) how the change would affect the preservation and development of the parent-child relationship with each parent; 2) the child’s identification with the family unit; 3) how long the child has used a particular surname; 4) the child’s preference, if mature enough to meaningfully express it; 5) whether the resulting surname would be different than the residential parent’s; 6) whether the child would feel embarrassed, discomfort, or inconvenience due to bearing a surname different from their residential parent; 7) parental failure to maintain contact and support; and 8) any other factor relevant to the child’s best interest.

Supreme Court Analysis

An Interesting Standard of Review Nuance

The standard of review in a name change case is abuse of discretion.  In this case, for example, the Court of Appeals found the trial court had not abused its discretion in granting the name change.  But at the Supreme Court level the Court found that “when there is insufficient evidence as a matter of law that a name change is in the best interest of the child, a trial court’s judgment changing a child’s surname must be reversed.” At the end of the case the Court specifically held that “in this situation, where insufficient evidence supported the name change, the trial court’s judgment was erroneous as a matter of law.” (emphasis added.)

Sticking Closely to Precedent

The Court found that this case was governed by Bobo and Willhite. Justice Cupp emphasized that the Supreme Court had cautioned in Bobo that courts in unmarried-parent situations should not give greater weight to the father’s surname preference over the mother’s.  To do so would be discriminatory—a point the Court re-emphasized in Willhite. The Court also emphasized a key additional factor added in Willhite, which is whether the child’s surname is different from the surname of the residential parent.  And an overarching point is the parent seeking the name change has the burden of presenting sufficient evidence to show that the change is in the child’s best interest. Ultimately, that is where the Court found the father failed in this case.

Why the Mother Succeeded Here

The Court agreed with the mother that the father’s reasons for wanting the name change were for his own reasons, rather than the child’s best interests, and found that in contrast, the mother’s testimony provided specific reasons why the name change would be detrimental to L.

And A Smack Upside the Head for Gender Stereotyping

“Moreover, based on the record that is before us, the mother’s position that the trial court’s decision was, at least in part, based on gender-based traditions and assumptions, contrary to this court’s cautionary warnings in Bobo and Willhite, has merit,” Cupp wrote.

He added these comments, which my colleagues at the University of Cincinnati Center for Race, Gender, and Social Justice are bound to applaud:

“One of the reasons given by the trial court supporting the decision to allow the name change was that if either parent marries, “[t]he father is far less likely to change his surname” than the mother. We recognize that the trial court’s comment that a woman who marries “often takes her spouse’s surname,” is not an inaccurate observation. However, this generic consideration—that a woman is more likely to change her surname if she should marry—cannot be a valid factor supporting a name change in a specific case like the one before us, and it runs counter to the explicit directives of Bobo and Willhite. See McGowan, 2005-Ohio-2938, at ¶ 31 (it is improper to “perpetuate the discrimination against mothers or against non-marital children by imposing different naming standards upon them”).

Case Syllabus


Concluding Observations

As I said at the time, I’ve got a bias in this one, because the mother’s position was argued by one of our recent University of Cincinnati law grads, Ginger Bock.  We were, of course, cheering her on, and are proud of her, not only for winning, but for conducting herself so professionally. Makes us all look good!

I called this as a win for the mother, but thought the Court would be more closely divided.  It appeared that way after argument.  The biggest surprise was Justice Cupp authoring the decision.  He seemed the most traditional in this matter, and most likely to go the other way.

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