Opinion
September 21, 1984
Present — Dillon, P.J., Doerr, Green, Moule and Schnepp, JJ.
Application unanimously denied and petition dismissed, without costs. Memorandum: Petitioner seeks to vacate an order issued by respondent which granted an application to petitioner's former spouse to change the surname of their son.
Although a father has a recognized interest in having his child bear his surname (see, e.g., Matter of Yessner, 61 Misc.2d 174; Matter of Hinrichs v Beinecke, 41 Misc.2d 422; Steinbach v Steinbach, 119 N.Y.S.2d 708; cf. Matter of "Shipley", 26 Misc.2d 204), 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.
The petition fails to state a cause of action pursuant to CPLR article 78 and is dismissed. We note that the proper manner to challenge the order complained of is by appeal (see CPLR 7801, subd. 1). (Art 78.)