Monday, November 26, 2007

Indiana Appellate Case Update

Frankly, the past two weeks have been pretty barren for family law cases. Only one reported case deals with family law issues this week: Name Change of H.M.C., F.S.C., and S.A.C., b/n/f Tricia Gracey Tominack v. William Archie Curtis (PDf Format) and it is a doozie.

The facts make this case interesting. It adds little to the law on changing names (best interests of the child controls, father paying support has presumption against change of name so long paying support and objects to change), but does clarify one point about generally naming children.

At trial, Mother asserted she had a right to change her children’s names without a court order. (See Tr. at 26) (“I believe that I can . . . my children can call themselves what they want, they can go by the name they want, and I can call them the name I want.”).
That is not the law:A father and mother enjoy equal rights with regard to naming their child. See Tibbitts v. Warren, 668 N.E.2d 1266, 1267 (Ind. Ct. App. 1996) (“Upon a determination of paternity, both the mother and father potentially enjoy equal legal rights as parents with regard to issues of support, custody, and visitation. I.C. § 31-6-6.1-10 (1993). We have applied this notion of equality to the naming of the child.”), trans. denied; T.J.B. v. G.A.H. (In re Name Change of J.N.H.), 659 N.E.2d 644, 646 (Ind. Ct. App. 1995) (“Upon a determination of paternity, both the mother and father potentially enjoy equal legal rights as parents.... Hence, it is only reasonable to allow them equal rights in the naming of the child.”).
Fetkavich, 855 N.E.2d at 755.
What makes this case as interesting as it is has to do more with witnesses. Mother chose to ignore a trial court's earlier judgment disallowing a change of name. The Court of Appeals had this to say about that:
Mother fails to acknowledge the trial court properly could have chosen to ignore all of Mother’s testimony. Mother presumably damaged her own credibility by ignoring the court’s prior order denying the name change. Mother’s first excuse for ignoring the order was “the wrong standard was used, and the toll went for the appeal.” (Tr. at 20.)...The trial court was not obliged to believe Mother’s testimony the children wanted to change their names. See In re Petition of Meyer, 471 N.E.2d 718, 721 (Ind. Ct. App. 1984) (A child’s “purported desires as related by her mother do not meet the required clear and convincing standard.”).
Mother also argued that the children ought to have interviewed in chambers but the Court of Appeals held in camera interviews as being discretionary with the trial judge. Then the Court of Appeals went on to comment about the credibility of child witnesses:
Even had the court interviewed the children and heard testimony they wanted their names changed, the court would not have been required to believe their testimony:
Even had the judge determined [the child] to be sufficiently mature to make a reasoned choice, her testimony would be immediately suspect because of the possibility of undue influence by her mother. In Indiana, the domestic relationship between parent and child raises a presumption of undue influence. This presumption would be particularly strong in a domestic suit where the court is asked by the custodial parent to rely on the testimony of a child of only four and one-half years of age thus making the reliability of any such testimony highly suspect.
Meyer, 471 N.E.2d at 721. While the three children at issue here were three and four years older than the child in Meyer, Mother has not rebutted the presumption of undue influence.
I think this case also stands as evidence of what drives our more contentious divorces. This was mother's second attempt to change the children's name after divorcing their father. Mother ignored a court order about the children's names. What makes this case even more poignant is that Mother was a lawyer. The Court of Appeals recognized some of these issues in its eighth and last footnote:
Mother apparently was sufficiently committed to effectuating a name change that she placed her professional status in jeopardy by intentionally violating a court order....


Anonymous said...

Came across your site not to long ago and have been reading the older post......

This is interesting. I have been researching how to combat this problem. My ex has told our child several times she is going to change his last name (carries mine and has since birth) when she gets married, as she wants all her kids to have the same last name. She uses and has him use her married name when he is with her, even prior to her marriage this past April. I have addressed this with her attorney (I am pro se) but get no response. I am the custodial parent during the school months and she is during the breaks its been this way since 98, our child is 13. There is no child support, that was denied when I filed. I will comment further the out come if she does file.


Sam Hasler said...

Please do let us know more. I may want to feature it as a post instead of a comment - with your permission.

Loretta said...

I have a 14 year old child who wants to change his last name. He resides with me. I have not tried to influence him. His father has not EVER paid support for him as his dad had one of the boys and I had the other. I now have both boys. Dad STILL does not pay support. I have retained an atty to try to get support but dad is fighting it and I don't know how long I can continue to pay her fees. What can my son do to get his name changed? Does his dad have to agree?

Sam Hasler said...

So long as Dad has had significant communication with the child, the answer is yes.

Erica said...

I was wondering if you could point me in the right direction for changing my son's last name, he is 9 has never met his Dad and does not know who he is, his name is not on his birth certificate and he has my maiden name, I have been married to my husband for 7 years together for 8 and he is the only father my son knows. We would like to change his last name and he would like to as well as he goes by it on everything that is not legal, we are in St.Joe County and I have no idea on how to move forward on this.

Sam Hasler said...

Call an attorney about a name change.