NORTH CAROLINA LAW REVIEW Volume 75 | Number 5 Article 3 6-1-1997 We Are Family: Valuing Associationalism in Disputes over Children's Surnames Merle H. Weiner Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Merle H. Weiner, We Are Family: Valuing Associationalism in Disputes over Children's Surnames, 75 N.C. L. Rev. 1625 (1997). Available at: http://scholarship.law.unc.edu/nclr/vol75/iss5/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. "WE ARE FAMILY"*: VALUING ASSOCIATIONALISM IN DISPUTES OVER CHILDREN'S SURNAMES MERLE H. WEINER** An increasingvolume of litigation has arisen between divorced or separated parents concerning the surnames of their minor children. For example, a newly divorced mother will sometimes petition the court to change her child's surnamefrom the surname of the absent father to the mother's birth surname or her remarried surname. Courts adjudicating such petitions usually apply one of three standards: a presumption favoring the status quo, a "best interest of the child" test, or a custodial parent presumption. In this Article, Professor Merle Weiner argues that all three of these standards are flawed-either in their express requirements or in their application by the courts-because they reflect men's conception of surnames and undervalue associationalistprinciples. After setting forth her feminist methodology, Professor Weiner explores the differences between men's and women's experiences with their own surnames. Professor Weiner argues that because men typically retain their surnames from birth to death, many men come to believe that a constant surname is essential for a stable sense of identity. Women, by contrast, are more accustomed to surnominal alterity because they often change their names upon marriage. Women generally conceive of surnames as markers of association-i.e., a surname indicates "I am presently associated with family members in this household." Professor * SISTERS SLEDGE, We Are Family, on WE ARE FAMILY (Atlantic Records 1979). ** Associate Professor of Law, University of Iowa College of Law. J.D., Harvard Law School, 1990; LL.M., Cambridge University, 1988; B.A., Dartmouth College, 1985. I appreciate the very helpful comments provided by the following people: Eric Andersen, Arthur Bonfield, Bill Buss, Pat Cain, Bob Clinton, Mary Dudziak, Josie Gittler, David Herring, Ken Kress, Jean Love, Marge Shultz, and Lea VanderVelde. I also thank my research assistants, Maria Barraza, Chad Snyder, and Cleveland Tyson, for tracking down materials in previously unfamiliar libraries. I am grateful to the University of Iowa for the Old Gold Research Award which funded this project. The editors at the North Carolina Law Review deserve commendations for their professionalism and hard work. My ac- knowledgments would be incomplete without recognizing Tom Lininger's extraordinary help at the editing stage and the inspiration provided by Charles Eli Weiner-Lininger. 1626 NORTH CAROLINA LAW REVIEW [Vol. 75 Weiner also discusses other differences between men's and women's views of surnames, including the belief of many men, but not women, that a non-custodialparent and his child need to share the same surname in order to preserve a strongfilial bond. Professor Weiner argues that the male conception of surnames pervades all of the standards presently used by the courts to adjudicate name change disputes, and the courts ignore or undervalue the female conception of surnames. This gender bias is unfortunate, Professor Weiner contends, because the female associationalist perspective is more consistent with children's interests, and better comports with the values that courts should be promoting in the context of maritaldissolution. ProfessorWeiner suggests various alternativesfor reform. She argues that equal protection litigation and the education of judges are not sufficient to ensure that associationalism receives the attention it deserves in name change disputes. Professor Weiner concludes by proposing a "family association rule." This rule would require courts to grant the custodialparent's name change petition provided that an associationaljustification exists. The rule carves out an exception if the non-custodial parent demonstrates, by clear and convincing evidence, that seriousharm to the child would result from the name change. While recognizing the limitations of this solution, Professor Weiner contends that it offers the best promise of ensuring that associationalistprinciples guide the adjudicationof name change disputes involving children. I. INTRODUCTION ........................................................................ 1627 II. A FEMINIST PERSPECTIVE ON THE NAME G AM E .........................................................................................1636 III. MEN'S AND WOMEN'S CONCEPTIONS OF SURNAM ES ................................................................................ 1645 A. An Illustrative Colloquy ..................................................... 1645 B. Men's Conceptions of Surnames ........................................ 1649 1. Surnames and Identity ................................................. 1650 2. Patronymy as "Immortality"........................................ 1657 3. Surnames as Markers of Dominion ............................. 1659 4. Patronymy and the Father-Child Bond ....................... 1665 C. Women's Conceptions of Surnames................................... 1666 1. Lability of Surnames .................................................... 1667 2. Surnames and Identity ................................................. 1673 3. Surnames as Markers of Association .......................... 1684 IV. THE LAW REFLECTS MEN'S CONCEPTIONS OF SURNAMES AND UNDERVALUES 1997] ASSOCIATIONALISM IN NAMING DISPUTES 1627 ASSOCIATIONALIST PRINCIPLES ............................................. 1690 A. Presumptionin Favor of the Status Quo ........................... 1693 B. Best Interest of the Child Standard..................................... 1709 1. Child's Interest in Preserving Relationship with Father ............................................................................ 1715 2. Child's Interest in Retaining Long-Used Surnam e ........................................................................ 1719 3. Child's Interest in Avoiding Stigma of Illegitim acy .................................................................... 1724 4. Motives of Moving Parent ............................................ 1729 5. Child's Interest in Avoiding Embarrassment or D iscom fort .................................................................... 1732 6. Any Other Factor Relevant to the Child's Interest .......................................................................... 1738 C. CustodialParent Presumption ........................................... 1742 V. ALTERNATIVES FOR REFORM ................................................. 1753 A. Equal Protection Litigation................................................ 1753 B. Education of Judges............................................................ 1760 C. A New Legal Standard: The Family Association R ule ...................................................................................... 1761 I. INTRODUCTION Alan Gubernat killed his three-year-old son and himself three days after the New Jersey Supreme Court decided that the boy would bear his mother's surname, Deremer, rather than the surname Gubernat.' No one had foreseen that this naming dispute would lead to such disastrous consequences. The court described Mr. Guber- nat's relationship with his son as "loving and supportive."2 Mr. Gubernat's own lawyer said," 'The quality of the relationship he had with this child is so contrary to this, so antipodal.' , Even Mr. Gu- bernat's psychologist had seen no forewarning of the tragedy.! Though Mr. Gubernat was by all accounts a "doting" father5 he would sooner murder his own son than endure the ignominy of per- mitting the boy to bear the maternal surname. 1. See Gubernat v. Deremer, 657 A.2d 856, 857 (N.J. 1995) (adjudicating name dis- pute of non-marital child); Doting FatherKills Son, Self After Losing Battle Over Name, L.A. TIMES, May 16, 1995, at A20 [hereinafter Doting Father Kills Son]. 2. See Gubernat,657 A.2d at 870. 3. Paula Span, Killing Ends Fight Over Child's Name: Officials Say FatherShot Son, Self After Court Ruled for Mother, WASH. POST, May 16, 1995, at Al. 4. See id. 5. See Doting FatherKills Son, supra note 1, at A20. 1628 NORTH CAROLINA LAW REVIEW [Vol. 75 Mr. Gubernat's fatal obsession with his son's surname provides a disturbing backdrop against which to analyze the law governing the changing of children's surnames. To be sure, most disputes over children's surnames never result in litigation, let alone murder or suicide. In cases that do not reach the legal system, the selection of a child's cognomen may be influenced by statute,' testamentary in- strument,7 third-party contract,' pre-existing agreement between the parents,9 relatives' pleas,10 family custom,11 parental negotiation, 2 ma- 6. See, e.g., Henne v. Wright, 904 F.2d 1208, 1209-10 (8th Cir. 1990) (upholding con- stitutionality of statute setting parameters for choice of child's surname); Robertson