Opinion
E079598
12-19-2023
In re the Marriage of N.B. and H.M.O. v. H.M.O., Appellant N.B., Respondent,
The Appellate Law Firm, Aaron Myers and Mark Kuntze for Appellant. Granowitz, White and Weber and Steven R. Weber for Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FAMSS1305088, Steven J. Singley, Judge. Affirmed.
The Appellate Law Firm, Aaron Myers and Mark Kuntze for Appellant.
Granowitz, White and Weber and Steven R. Weber for Respondent.
OPINION
RAMIREZ P.J.
M.G. is the birth name of H.M.O. (father). He and his wife N.B. (mother) gave their son the last name G.-B. - i.e., their own last names, hyphenated. Later, the father legally changed his own name to H.M.O. Nevertheless, when the parents divorced, they entered into a stipulated judgment providing that the child's last name would be G.-B.
More than seven years later, the father asked the trial court to change the child's last name to O.-B., so as to be consistent with his own change of name. His main argument was that, for purposes of traveling together and obtaining medical care, it was at best inconvenient and at worst potentially dangerous for him and his son to have different last names. The mother disagreed; her main argument was that the child's existing name had become part of his identity so that changing it would be detrimental.
The trial court issued a careful, thoughtful, and detailed written ruling denying the father's request. The father appeals. However, we find no fault with the ruling.
I
COMBINED STATEMENT OF THE CASE AND STATEMENT OF FACTS
A. Background.
The father's birth name was M.G. - a Hispanic first and last name.
In October 2013, he legally changed his name to H.M.O. - a Nahuatl first and last name - to "appropriately reflect [his] cultural heritage."
The parties' marriage was dissolved by a stipulated judgment entered in October 2014.
They have one child. At the time of the hearing below, he was eight years old (one month short of nine). The parents had given him the last name G.-B. - their last names, at that time, hyphenated.
The stipulated judgment provided that the child's last name would be G.-B. The parents were awarded joint legal custody. At the time of the hearing below, they had shared physical custody (apparently 50/50, although the record is not entirely clear on the exact division).
B. Declarations.
In 2022, the father filed a request for orders to change the child's last name to O.-B., to match his own new name.
He testified that he had problems while traveling with the child because they did not have the same last name. In June 2017, they were pulled away from an immigration checkpoint and questioned. In July 2019, airline personnel questioned them before allowing them to board a flight to Puerto Rico. On their return trip, they were questioned at customs and were "at risk" of missing their flight. In July 2020, during a road trip, they were questioned at "various" immigration checkpoints; according to the father, "my paternity was doubted, and [I] risked having our son . . . taken from me."
The father, a doctor, had seen "numerous cases where teenagers did not get prompt medical care because the father was unable to promptly prove legal paternity, and vi[c]e-versa, because of different last names." Either the father or child could not identify the other due to "alter[ed] consciousness." He agreed that this would not prevent emergency medical care. Sometimes, however, nonemergency cases turned into emergencies. Also, he testified the Health Insurance Portability and Accountability Act (HIPAA) prohibits giving out a person's medical information to someone who cannot prove a relationship.
The mother, also a doctor, testified, "[M]edically necessary care cannot be denied due to a child having a different last name than their parent/guardian. Legal guardians, step-parents, and adoptive parents potentially may not have the same last name as a child and this would never legally prohibit a child from receiving medically necessary care."
According to the mother, the child had "his own identity," and changing his last name "would be disruptive to his emotional growth and social integration ...." She suggested that the father could avoid problems when traveling with the child by amending the child's birth certificate so as to add the father's current name and keeping a copy of it with him.
C. Additional Testimony at the Hearing.
At the hearing on the request, the father testified that no living relative on his side of the family had the last name G. His sisters had all married and taken their husband's last names.
He had stipulated to the child's current name because he "was very naive to the process" and "honestly did not know the legal system." However, when he entered into the stipulated judgment, he did have an attorney.
The father admitted that a denial of the petition would not affect his relationship with the child: "I can change his name into a Russian name, it does nothing. It does not change that love we have as a father and son ...." He also admitted that the child sometimes said he wanted to "keep his name the same"; however, sometimes he said he was willing to change it. The mother testified that the child had said, "Please tell the judge . . . I don't want it changed."
D. The Trial Court's Ruling.
The trial court took the matter under submission, then issued a four-page written ruling. Citing In re Marriage of Schiffman (1980) 28 Cal.3d 640 (Schiffman), it took into account: "(1) The length of time the child has used a surname; (2) The effect of a name change on preservation of the father-child relationship, the strength of the mother-child relationship, and; (3) Identification of the child as part of a family unit, including the embarrassment or discomfort that a child may experience when he/she/they bears a surname different from the rest of his/her/their family."
"In consideration of the Schiffman factors, it appears to this court that it is not in the best interests of the minor to change his surname. He has been known as G[.]-B[.] nearly his entire life of 9 years and has already developed his identity. Father himself testified that his bond with his son will not change, regardless of the child's surname. Of the three factors, the last one favors Father's position in that there are no longer any G[.]'s with whom the child can identify. However, the first two factors favor Mother's position and the court gives greater weight to the first two factors on these particular facts. Additionally, the parties, who were both represented by two of the most prominent family law attorneys during their dissolution, negotiated this very issue and entered into a Stipulated Judgment which solidified the child's name. Inasmuch as the Father had already changed his surname prior to executing the Judgment, there has been no change of circumstance other than the passage of time, which militates in favor of retaining the child's current surname."
II
DISCUSSION
The father contends that the trial court erred by denying his request for a name change.
The leading case concerning a contested name change of a minor is Schiffman, supra, 28 Cal.3d 640. Its key holding was that the Uniform Parentage Act abrogated the common-law preference for giving a child the last name of the father. (Id. at pp. 643647.) Instead, "the sole consideration when parents contest a surname should be the child's best interest." (Id. at p. 647; see also id. at pp. 642, 645-647.)
In 1996, the Legislature codified this holding by enacting Code of Civil Procedure section 1278.5 (Stats. 1996, ch. 1061, § 2), which provides that, in a proceeding to change the name of a minor, unless both parents consent, "the court may deny the petition . . . if it finds that . . . the proposed name change is not in the best interest of the child."
Schiffman went on to discuss how to determine the best interest of the child: "[T]he length of time that the child has used a surname is to be considered. [Citation.] If . . . the time is negligible because the child is very young, other facts may be controlling. For instance, the effect of a name change on preservation of the father-child relationship, the strength of the mother-child relationship, and the identification of the child as part of a family unit are all pertinent. The symbolic role that a surname other than the natural father's may play in easing relations with a new family should be balanced against the importance of maintaining the biological father-child relationship. '[The] embarrassment or discomfort that a child may experience when he bears a surname different from the rest of his family' should be evaluated. [Citation.]" (Schiffman, supra, 28 Cal.3d at p. 647.)
The majority opinion in Schiffman was signed by three justices. Justice Mosk concurred in the opinion, with the "qualification" that there should be "a presumption that the parent with custody . . . has acted in the child's best interest in selecting the name." (Schiffman, supra, 28 Cal.3d at pp. 648, 651 [conc. opn. of Mosk, J.].) He agreed that "a genuine 'best interest' standard . . . would accord due weight to the following factors . . .: (1) embarrassment to the child when he bears a surname different from that of the parent with whom he resides; (2) identification of the child as part of the current family unit; (3) support of the mother-child relationship in cases in which the custodial mother uses her birth or previous surname. [Citation.]" (Id. at pp. 650-651.) Justice Bird also concurred in the substance of the lead opinion; she expressed only procedural concerns. (Schiffman, supra, 28 Cal.3d at p. 651 [conc. opn. of Bird, J.].)
In re Marriage of Douglass (1988) 205 Cal.App.3d 1046 held that, in a contested proceeding regarding the name change of a minor, we review the trial court's ruling under the substantial evidence standard. (Id. at pp. 1055-1056; accord, In re Marriage of McManamy &Templeton (1993) 14 Cal.App.4th 607, 610.)
"'In reviewing the evidence on such an appeal all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]' [Citation.]" (In re Marriage of Douglass, supra, 205 Cal.App.3d at p. 1055.) Here, the trial court's ruling is supported by substantial evidence.
The court also opined, however, that "[t]he trial court's . . . determination . . . appears neither arbitrary nor capricious." (In re Marriage of Douglass, supra, 205 Cal.App.3d at p. 1055.) These terms are normally part of the abuse of discretion standard of review. Arguably, the standard of review should be abuse of discretion. "Review for substantial evidence applies to factual determinations; abuse of discretion applies when a lower court must delicately balance factual determinations to assess an uncertain future situation." (In re Caden C. (2021) 11 Cal.5th 614, 641.) It suffices to note that the conclusions we reach would be the same under the abuse of discretion standard.
First and foremost, the child was almost nine years old; he had a social life outside the home, including at school, in which he was known as G.-B. The father claims "there is . . . no evidence that the child would be harmed by [the requested] change." However, the mother testified that changing his last name "would be disruptive to his emotional growth and social integration ...." Moreover, the trial court could accept the mother's testimony that the child did not want to change his name. The father even admitted that, at times, the child told him he did not want to change it.
The father criticizes the trial court for "giv[ing] the greatest weight to the first factor, namely the amount of time that the child has had the current name ...." In Schiffman itself, however, the Supreme Court said, "If . . . the time is negligible because the child is very young, other facts may be controlling." (Schiffman, supra, 28 Cal.3d at p. 647.) Thus, it implied that, when the child is not very young, that fact alone may override other considerations. In any event, the trial court did expressly consider the other Schiffman factors. How to weigh and balance them was very much up to it.
The trial court did consider the effect of a name change on preservation of the father-child relationship. However, it accepted the father's concession that the denial of the requested change would "not change that love we have as a father and son ...." The father argues that, presumably, granting the requested name change likewise would not affect the mother's love for the child. Even if so, that just means this factor is a "push," entitled to no weight at all.
The trial court also considered the embarrassment or discomfort that a child may experience when he bears a surname different from the rest of his family. It even acknowledged that this factor "favors Father's position." The child already had the mother's last name, B.; no one on the father's side of the family had the last name G. Nevertheless, it could reasonably weigh the child's own choice of name more heavily than mere absence of embarrassment.
The father asserts: "The child does have a problem with not having the same last name as Father. He has questioned why his friends have their father's last name and he does not." However, this assertion is not cited to the record (Cal. Rules of Court, rule 8.204(a)(1)(C)), and we have found no evidentiary support for it.
The trial court also reasoned that the father had stipulated to the child's current name, and there had been no changed circumstances since then. The father does not take issue with this reasoning. Admittedly, changed circumstances are not a Schiffman factor, as such. Nevertheless, in assessing the Schiffman factors, the trial court could properly reason that, when the father entered into the stipulated judgment, he presumably believed it was in the child's best interest to keep his existing name. "[T]here is a presumption that fit parents act in the best interests of their children." (Troxel v. Granville (2000) 530 U.S. 57, 68 [plur. opn. of O'Connor, J.]; see Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1130, fn. 11 ["The comments on parental fitness in Justice O'Connor's plurality opinion found general agreement in the dissents filed by Justices Stevens and Kennedy."].)
In his opening brief, the father does not raise the arguments that he did below about travel and medical care. However, he does raise them belatedly, in his reply brief. We accept that the Schiffman factors are not exclusive. "The child's best interest analysis must look at the 'totality of the child's circumstances.' [Citation.]" (In re Vincent M. (2008) 161 Cal.App.4th 943, 960.) It would be impossible for any court to list in advance all of the factors that are potentially relevant in every future case.
The trial court, however, could reasonably dismiss these arguments.
Regarding travel, the father did not show that he had ever suffered any detriment beyond being questioned. He had never actually been separated from the child; he had never actually missed a trip. The mother reasonably suggested that he could avoid any problems by having the child's birth certificate amended and taking a copy with him whenever he traveled with the child. (See Health &Saf. Code, § 103225; see also Cal. Dept. of Public Health, Application to Amend a Birth Record (VS 24B) <https://www.cdph.ca.gov/CDPH%20Document%20Library/ControlledForms/VS24B.pd f>, as of Dec. 19, 2023.)
Regarding medical care, the parties gave conflicting testimony. The mother testified, "[M]edically necessary care cannot be denied due to a child having a different last name than their parent/guardian." The father agreed that emergency care could not be denied, but he testified that nonemergency care could be delayed. He also testified that he might be denied medical information about the child. Again, however, it would seem that the father could avoid all of these problems by obtaining and carrying an amended birth certificate.
And both issues, as the trial court suggested at the hearing, were overblown. Many parents have a child with a different last name. A mother may be unmarried, or, if married, she may keep her maiden name, yet give a child the father's last name. A stepparent may adopt a spouse's child from a former relationship. A couple adopting a child may decide not to change the child's last name. And a legal guardian may not share the child's last name. It is reasonable to suppose that the travel and medical industries have procedures in place to deal with these situations. Last, but not least, the child was almost nine; he was quite capable of telling the authorities that the father was indeed his father.
In sum, the father has not shown that the trial court erred.
III
DISPOSITION
The order appealed from is affirmed. The mother is awarded costs against the father.
We concur: McKINSTER J., CODRINGTON J.