Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RF05229019
STEIN, Acting P. J.
Louis J. Cisz III (the father) appeals from an order granting the petition of Doreyne Douglas (the mother) to change the name of the parties’ child from Cassidy Jane Cisz to Cassidy Jane Douglas. We reverse.
Background
The father and the mother, who used her birth surname, Doreyne Dolato, were in a long-term relationship, but never married. The child was born on July 26, 2002. The parties named her Cassidy Jane Cisz, which name appears on her birth certificate. The father signed a declaration of paternity. The parties later separated, apparently in early 2003. They entered into a separation and child custody agreement, under which the child was to reside primarily with the mother, but would spend a significant period of time each week with the father, including no less than two nights, one weekend day, and one weekday dinner visit after preschool or daycare. The parents further agreed the child would spend essentially one-half of her holidays and vacation times with each parent. Effective August 1, 2005, the father’s time with the child was to increase to two consecutive overnights each weekend, and assuming it was in the child’s best interest, the weekday dinner visit was to increase to an overnight stay. It appears that this arrangement has worked out, and both parents have maintained an active part in the child’s life.
On May 27, 2005, when the child was a few months shy of three years old, the mother filed a petition to change the child’s surname to Douglas. As her reasons for the petition, the mother explained she had married Robert Douglas (the stepfather) in July 2004, and had changed her own surname from Dolato to Douglas. According to the mother, the child had become emotionally attached to the stepfather, calling him “daddy.” The mother recently had become pregnant. She believed it to be extremely important for the child to feel connected to her new sibling and “primary family, ” asserting it was in the child’s best interest to have the same last name as the people with whom she was spending the majority of her day-to-day life.
The petition was refiled in June 2005, and at that time served on the father. The father opposed the petition. According to his declaration, the child had known her full name to be “Cassidy Jane Cisz” since at least the previous Thanksgiving. She was known by that name at her school and by her friends outside of school. She had regular contact with members of the Cisz extended family. Finally, the father expressed concern that the name change would diminish the importance of the father and his family in the child’s life. He claimed a surname change would cause instability, could artificially enhance the importance of one family unit to the detriment of the other and would needlessly cause ongoing confusion and conflict.
In January 2006, the mother filed an additional declaration in support of the petition. She reiterated her earlier assertions, but added that her pregnancy had resulted in the birth of a child who bears the stepfather’s surname, Douglas. The mother again expressed concern that having a last name different from that used by the rest of the household members could make the child feel like an outsider, asserting the name change would strengthen the child’s bond to the mother’s household without diminishing her bond with the father. The mother also claimed the child was too young to suffer any ill effect or confusion from the proposed name change.
The matter was tried on the parents’ declarations and on the arguments of their attorneys. There were no expert witnesses to state an opinion as to the likely effect of a grant or denial of the petition or whether a grant might be in the child’s best interests. The trial court granted the petition. It found that the mother’s household was the child’s primary familial unit, and reasoned that having a surname different from the other three members of that unit might cause the child to feel like an outsider or create the impression that she is not really part of that unit. The court believed it might also become a frequent source of embarrassment or discomfort to the child should her peers ask why her surname differs from that of the other members of that unit. The court reasoned, further, that changing the surname was unlikely to alter or diminish the child’s relationship with the father. Finally, as the child was only three years old at the time of the hearing, the court believed it unlikely she had developed an identity with the father’s surname, or that changing her surname at that age would result in confusion, ill effect or emotional harm to her.
Discussion
In In re Marriage of Schiffman (1980) 28 Cal.3d 640 (Schiffman), the California Supreme Court addressed the question of the surname to be given the child of a dissolved marriage, rejecting the traditional common law rule that the child should bear the father’s surname because the father has a “primary right” or “protectable interest” in having the minor child bear his surname even after the mother is awarded custody. (Id. at p. 642.) The Supreme Court found the rule no longer served any legitimate purpose, concluding it should be abolished, and henceforth, “as in parental custody disputes, the sole consideration when parents contest a surname should be the child’s best interest.” (Id. at p. 647.) The court held, “[u]nder the test thus revised the length of time that the child has used a surname is to be considered. [Citation.] If, as here, the time is negligible because the child is very young, other facts may be controlling. For instance, the effect of a name change on preservation of the father-child relationship, the strength of the mother-child relationship, and the identification of the child as part of a family unit are all pertinent. The symbolic role that a surname other than the natural father’s may play in easing relations with a new family should be balanced against the importance of maintaining the biological father-child relationship. ‘[T]he embarrassment or discomfort that a child may experience when he bears a surname different from the rest of his family’ should be evaluated.” (Ibid.) The court remanded the matter to the trial court to determine whether the name change was in the best interests of the child. (Id. at p. 648.)
Two cases decided since Schiffman, supra, 28 Cal.3d 640have considered whether a name change is in the best interests of a child. In In re Marriage of Douglass (1988) 205 Cal.App.3d 1046 (Douglass), the child was born after the parents had separated. By agreement of the parents, the court awarded joint legal custody to the parents, physical custody to the mother and visitation to the father. The court also considered the name that should appear on the child’s birth certificate, ultimately ruling that the child’s surname would be “Douglass-Lesher, ” hyphenating the surnames of the father and the mother. (Id. at p. 1048.) The father, Bruce Douglass, appealed. The appellate court identified the standard of review as whether substantial evidence supported the trial court’s decision. (Id. at p. 1055.) The father had argued it was necessary for the child to bear his surname to maintain their father-child relationship and know him as the father, particularly since the father did not have physical custody of the child. The mother had changed her name several times, and had changed the name of two older sons from their father’s surname to her own birth surname, after their father stated he wanted to terminate his relationship with the boys. Neither the father nor his other, older children ever had changed their names. The father therefore contended that giving the child the father’s surname would provide the child with consistency, suggesting the mother might again change her name. (Id. at pp. 1054-1055.) The mother argued the child should have the same last name shared by the mother and her other two sons. She expressed concern the child might feel embarrassment or discomfort from having a surname different from the family members with whom he was residing. (Id. at p. 1055.) A child custody “expert” who had testified “in a total of ‘five or six’ court trials involving the surname to be assigned a child” (id. at p. 1056), stated his opinion that “ ‘[t]he name itself is not a critical factor. . . . [¶] Children are able to handle the fact that their families are blended or that they come from different parentage. Children are amazingly flexible in this way, and especially if the non-custodial parent is going to be actively involved and fully involved in the child’s life, they would need to know . . . what their role is and who they are and what their relationship is with that other parent.’ Bearing the surname of the noncustodial parent does, however, help the child identify with that parent.” (Ibid.)
The appellate court found the father’s concern that the mother might again change her name to be speculative, but not unreasonable in view of her history. (Douglass, supra, 205 Cal.App.3d at p. 1054.) It also found the mother’s concern that the child might be embarrassed or uncomfortable because he did not share the same surname as the mother and her other children to be speculative. (Id. at p. 1055.) Ultimately, the court upheld the trial court’s “Solomon-like” determination, finding it was supported by substantial evidence and neither arbitrary nor capricious. (Id. at pp. 1055-1056.)
In In re Marriage of McManamy & Templeton (1993) 14 Cal.App.4th 607 (McManamy), the court reversed an order changing a child’s surname from Templeton to McManamy-Templeton. The mother and her older child used the surname Templeton, which was a surname from the mother’s former marriage. At the time of the order, the child was three years old and had started school. The parties had joint legal and physical custody under an arrangement not unlike the arrangement in this case. In support of the change, the father argued the child should not bear the name of the mother’s former husband. He did not contend the change would have an instant beneficial effect on the child’s life, but he believed she should not be confused about her heritage or his role in her life, arguing she should not have to worry why her last name was not the same as her father’s. (Id. at pp. 610-611.) The appellate court found the record devoid of any substantial evidence that the name change would be in the child’s best interest. (Id. at p. 611.) Addressing the father’s concerns, the court noted the child bore the father’s name as her own middle name, and, citing Douglass, supra, 205 Cal.App.3d 1046, pointed out the child’s “understanding of her father’s role in her life will not be based solely on her surname, but will develop in light of his conduct and attitudes, particularly his active involvement in her life.” (McManamy, at p. 611.)
Turning to the present case, we find no substantial evidence the name change from the father’s surname to the stepfather’s surname is in the child’s best interest. The evidence presented by both sides was essentially speculative, as were the factors listed by the court in support of its decision. There was nothing, other than the opinions of the mother, her attorney and the court, supporting the claim that the child might feel like an outsider in her mother’s family, or might be embarrassed by having to explain her name to others. The case law, although based on little more than the testimony of a single expert witness, suggests that having a name different from the name of others in a given household will have little, if any, effect on the child’s sense of belonging to that household. It also seems to be generally accepted that there is some benefit to a child from having the surname of the parent having less physical custody. In Schiffman, for example, the court postulated that one reason why courts often ignored the impact a name might have on the mother-child relationship might be “because mothers, usually given custodial preference in the past, generally had more regular contact and could maintain a psychological relationship without the need for the tie a surname provides. However, ‘the maternal surname might play a significant role in supporting the mother-child relationship, for example, in cases where the father is the custodial parent.’ ” (Schiffman, supra, 28 Cal.3d at p. 647.)
In sum, the case law, if anything, slightly supports the conclusion that, everything else being equal, the child’s best interest may be in bearing the surname of the parent with less physical custody. In any event, when a child has been given a surname, and has used that surname for several years, the party seeking a change necessarily bears the burden of showing the change will be in the child’s best interest. The mother did not meet that burden, but simply advanced her own opinion. Without more, the change of the child’s name was unjustified.
Disposition
We conclude the trial court erred in changing the child’s surname from Cisz to Douglas and therefore reverse the order changing the child’s surname to Douglas.
The father is awarded his appellate costs.
We concur: SWAGER, J., MARGULIES, J.