Here, the father is not in default in contributing to the support of his sons nor is he charged with improper conduct, nor are there other circumstances that would move the court to deny him the right to expect his kin to bear his name. [at 287] In W. v. H., 103 N.J. Super. 24 (Ch.Div. 1968), the judge as part of a divorce granted to the wife, granted her leave to resume her maiden name and to change the surname of the children to that name, again stating that "it is against the policy of the court to grant permission to resume a maiden name where unemancipated children who bear a different name are involved"; however, the judge found that because the husband had pleaded guilty to sexual intercourse with his eleven-year old daughter and had previously impregnated his oldest daughter, "forfeiture of [the] father's right to have his progeny bear his name" was appropriate. In Bruguier v. Bruguier, 12 N.J. Super. 350 (Ch.Div. 1951), the judge permitted the child of divorced parents to assume the surname of her mother's second husband; although the age of the child is not noted, it appears that she was a high school student and that the change of name was at her own request.

See also Robinson v. Hansel, 223 N.W.2d 138 (Minn. 1974); Application of Wing, 4 Misc.2d 840, 157 N.Y.S.2d 333 (1956); Application of Baldini, 17 Misc.2d 195, 183 N.Y.S.2d 416 (1959); Re Application of Seif, 50 Misc.2d 596, 243 N.Y.S.2d 172 (1963); Plass v. Leithold, 381 S.W.2d 580 (Tex.Civ.App. 1964); Application of Trower, 260 Cal.App.2d 75, 66 Cal.Rptr. 873 (1968). For cases in which courts granted a name change request, but only after giving substantial attention to the child's best interests, see Don v. Don, 142 Conn. 309, 114 A.2d 203 (1955); Application of Fein, 51 Misc.2d 1012, 274 N.Y.S.2d 547 (1966); Johnson v. Coggins, 124 Ga. App. 603, 184 S.E.2d 696 (1971); In re Russek, 38 Ohio App.2d 45, 312 N.E.2d 536 (1974); Newman v. King, 433 S.W.2d 420 (Tex. 1968); W. V. H., 103 N.J. Super. 24, 246 A.2d 501 (1968). A father's interest in having his children bear his name is a valuable and protectable interest, although it is not a property right nor such an interest as cannot be taken away from the parent, if the best interest of the child will be served.

" In Application of Yessner, supra, the New York court came to the same result when the father was convicted of manslaughter for choking the child's maternal grandfather to death. In W. v. H., 103 N.J. Super. 24, 246 A.2d 501 (1968) the New Jersey court allowed a name change in a case where the father was in prison for having sexual intercourse with his eleven year old daughter. There are no hard and fast definitions as to the type of misconduct required; however, the offense must be of such great magnitude that the continued use of the name by the children would result in significant harm or disgrace to them.

A father who had sexual relations with both his daughters resulting in his conviction and imprisonment was found to have caused such physical and psychological harm to the children that a change in name was warranted. W. v. H., 103 N.J. Super. 24, 246 A.2d 501 (Ch.Div. 1968). Other factors include abandonment of the child, wilful failure to pay support or general indifference to the child's welfare.

R. 5:1-2(a) must be read in pari materia with R. 4:72. This opinion respectfully differs with the opinions expressed in Sobel v. Sobel, 46 N.J. Super. 284, 134 A.2d 598 (Ch.Div. 1957) and W. v. H., 103 N.J. Super. 24, 246 A.2d 501 (Ch.Div. 1968). Both cases were decided before N.J.S.A. 2A:52-1 was amended to provide for notice to the Attorney General and the county prosecutor and R. 4:72-1 was amended to add the requirements of (a), (b) and (c).

[ Sobel, supra, 46 N.J. Super. at 287.] In W. v. H., 103 N.J. Super. 24 (Ch.Div. 1968), the court permitted a change. The father had pled guilty to having sexual intercourse with his eleven year old daughter, for which offense he had been sentenced to prison.

All are mothers of a minor child or children. Three judges in three counties reached this result, relying on the dictum, without citation of authority, in W. v. H., 103 N.J. Super. 24 (Ch.Div. 1968), that "it is against the policy of the court to grant permission to resume a maiden name where unemancipated children who bear a different name are involved" and on a pronouncement, also without citation of authority, in 12 N.J. Practice ( Herr-Lodge, Marriage, Divorce Separation), § 2511 at 620 (1963), that "If there are infant children of the marriage in the wife's custody, her application for leave to resume her former name will not ordinarily be granted unless good reasons should appear." The three appeals were consolidated.