Opinion
10-29-2014
In the Matter of the Application of Tamannatul KOBRA as Parent of Heemika Hossain, an Infant, for Leave to Change Her Name to Himika Himadri, Appellant. In the Matter of the Application of Tamannatul Kobra as Parent of Sidratul Muntaha Hossain, an Infant, for Leave to Change Her Name to Oporajita Neeladri, Appellant.
McCormick & O'Brien, LLP, New York City (Scott D. Smith of counsel), for appellant.
McCormick & O'Brien, LLP, New York City (Scott D. Smith of counsel), for appellant.
Opinion
Appeals from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.; op. 37 Misc.3d 1216[A], 2012 N.Y. Slip Op. 52061[U], 2012 WL 5373490 ), entered October 31, 2012. The order, insofar as appealed from, upon consolidating two name change proceedings for purposes of determination (see CPLR 602[a] ), dismissed both petitions. ORDERED that, on the court's own motion, the notices of appeal are deemed to be applications for leave to appeal, and leave to appeal is granted (see CPLR 1702[c] ); and it is further,
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the order, insofar as appealed from, is reversed, without costs, the petitions are reinstated, and the matters are remitted to the Civil Court for a hearing on the record.
In these proceedings, which have been consolidated for purposes of disposition (see CPLR 602[a] ), petitioner seeks to change the names of her two infant children. The limited record before us indicates that the children's father consented to the proposed name changes and that nobody objected to the changes. Petitioner's applications were denied without an evidentiary hearing. In its supporting decision, the court commented that, although petitioner had justified the proposed name changes as being consistent with Bangladeshi custom, the proposed name changes were inconsistent with American social customs and accepted practices because the children's surnames would not match either parent's surname or each other's surnames. The petitions were dismissed upon a finding that the proposed name changes were not in the best interests of petitioner's children.
Civil Rights Law § 63 authorizes an infant's name change if there is no reasonable objection to the change of name proposed, and the interests of the infant will be substantially promoted by the change. As an application to change the name of a minor may not be denied without a hearing (see Matter of Altheim, 12 A.D.3d 993, 784 N.Y.S.2d 910 [2004] ; Matter of John Phillip M.-P., 307 A.D.2d 318, 318–319, 762 N.Y.S.2d 808 [2003] ; Matter of Kyle Michael M., 281 A.D.2d 954, 722 N.Y.S.2d 661 [2001] ; Matter of Siveski [Novakovic], 42 Misc.3d 130[A], 2013 N.Y. Slip Op. 52187 [U], 2013 WL 6696660 [App.Term, 1st Dept.2013] ; see also Matter of Anonymous, 106 A.D.3d 1503, 964 N.Y.S.2d 852 [2013] ), the Civil Court erred in denying the petitions at issue herein without a full hearing on the record (see Matter of Siveski [Novakovic], 42 Misc.3d 130[A], 2013 N.Y. Slip Op. 52187[U], 2013 WL 6696660 ).
We note that an objection to a proposed name change for a child “must relate to the child's best interests or bear on the parent's relationship with the child” (see Matter of John Phillip M.-P., 307 A.D.2d 318, 762 N.Y.S.2d 808 ), and that although a court may consider the inclusion of one or both parents' surnames as one among a “myriad of factors” in its consideration of a petition for the name change of a minor, Anglo–American “patronymic custom” is relevant to neither of those concerns (see Matter of Eberhardt, 83 A.D.3d 116, 123, 920 N.Y.S.2d 216 [2011] ).
To the extent that, by its order, the Civil Court sought to limit petitioner's right to petition in the future to change her children's names, we note that the court exceeded its authority, which was only to determine the name change petitions that were pending before it.
Accordingly, the order, insofar as appealed from, is reversed, the petitions are reinstated, and the matters are remitted to the Civil Court for a hearing on the record.
SOLOMON and ELLIOT, JJ., concur.
WESTON, J.P., concurs in part and dissents in part in a separate memorandum.
Weston, J.P., concurs in part and dissents in part, and votes to reverse the order, insofar as appealed from, reinstate the petitions and grant them in the following memorandum:
While I concur with the majority's determination to grant leave to appeal and to consolidate the two appeals, and in its finding that the Civil Court erroneously denied the petitions without a hearing, I would not remit the matter for a hearing. In my opinion, petitioner's submissions are sufficient to warrant the granting of her request to change her daughters' names.
As the majority correctly concludes, a petition to change the name of a minor may not be denied without a hearing (see Matter of Altheim, 12 A.D.3d 993, 994, 784 N.Y.S.2d 910 [2004] ). Here, the Civil Court not only denied the petitions without a hearing, but made factual findings and credibility determinations in the absence of such a hearing. The Civil Court found—without any testimony or other evidentiary support in the record—that petitioner was neither credible nor trustworthy, that her reasons for requesting the name changes appeared to be deceitful, and that the proposed name changes would subject her children to embarrassment. Since such factual findings were not based upon a proper record (see CPLR 4213[b] ), I, like the majority, decline to affirm. Nevertheless, under the circumstances presented, I would not remit the matter for a hearing, but rather would grant the petitions.
In denying the petitions, the Civil Court cited to the atypical nature of petitioner's request, stating that it is not common in this country for members of the same household to have completely different surnames. However, what is customary in this country in naming a child is not a determinative factor in deciding whether to grant a request for a name change (see Matter of Eberhardt, 83 A.D.3d 116, 123, 920 N.Y.S.2d 216 [2011] ; Matter of John Phillip M.-P., 307 A.D.2d 318, 318–319, 762 N.Y.S.2d 808 [2003] ). As long as the petition is true, there is “no reasonable objection” to the change, and, as relevant here, the interests of the infant will be “substantially promoted by the change,” the court “shall make an order authorizing the petitioner to assume the name proposed” (Civil Rights Law § 63 ).
While I agree with the Civil Court that such requests should not be perfunctorily granted, in this case, petitioner's requests are neither objectionable nor contrary to her children's best interests (compare Matter of Nawadiuko, 37 Misc.3d 1207[A], 2012 N.Y. Slip Op. 51931[U], 2012 WL 4840800 [Civ.Ct., Richmond County 2012] [denying application to change family's last name to “ChristIsKing”] ). Petitioner sought, without opposition and with the father's consent, that her children's names be changed to Himika Himadri and Oporajita Neeladri. In doing so, petitioner informed the court that her daughters' current surname—Hossain—has subjected them to ridicule from other children because of its Muslim origin. The fact that the daughters' proposed surnames differ from each other and their parents—which is customary in petitioner's birth country of Bangladesh— should not be a basis for denying the request. Our nation has a longstanding tradition of embracing cultural differences and respecting those differences. To deny an otherwise unobjectionable name change simply because it is culturally different not only goes against this tradition, but undermines the parents' role in deciding what is in the best interests of their children (see Matter of Thurman, 5 Misc.3d 1010[A], 2004 N.Y. Slip Op. 51323[U], 2004 WL 2495715 [Civ.Ct., Kings County 2004] ). In my opinion, the Civil Court's concern for potential confusion and embarrassment among peers and school administrators is neither supported by the record nor sufficient to override the parents' judgment in this case. In the absence of any objection to the petitions, and in light of petitioner's compliance with the statute, I would reverse the Civil Court's order, insofar as appealed from, reinstate the petitions, and grant them.
Petitioner did not set forth this reason in her petitions to change her daughters' names. Instead, she simply stated that she “[did] not like the name[s].” Such a statement, by itself, is insufficient to show that the proposed name change would “substantially promote[ ]” the interests of petitioner's children (Civil Rights Law § 63 ). However, since the Civil Court acknowledged that petitioner had raised that additional reason for the changes, I would consider this reason as a basis for granting the change.