Published on:

Father accused of crimes

A Kings Criminal Family Lawyer said that, petitioner mother and guardian of her daughter and son, who reside with petitioner, seeks a court order changing her name and her children’s names because petitioner is a domestic violence victim; her abuser knows all her identifying information; and she fears that her and her children’s lives and safety are in serious jeopardy unless she and her children change their names. Therefore she also requests, as essential to their safety, that notice of their name changes not be (1) given to her daughter’s father, the abuser, (2) published or (3) maintained as a court record accessible to the public. She attests that if the name changes are made public or disseminated, her “attacker will find out,” and her and her children’s safety will remain in jeopardy.

A Kings Domestic Violence Lawyer said that, in addition to petitioner’s personal knowledge of the father’s abuse over the course of two years and his persistent, continuing threats to kill her, hearsay evidence indicates he also has a long criminal record and is wanted by the State of Georgia, her former residence, on charges of sex crimes, assault with a deadly weapon, possession of a firearm, and carjacking. On October 16, 2003, the New York County Family Court issued an order of protection requiring the father to stay away from petitioner and her children, whose residence the court kept confidential, and refrain from threats, intimidation, or any criminal offense against her.

The issue in this case is whether petitioner’s petition for change of name should ne granted.
Court ordered name changes are to be published in a designated newspaper in New York County within 20 days after the name change order is entered. Although only one reported decision interprets Civil Rights Law § 64-a since its enactment in 1994, section 64-a plainly authorizes waiver of publication and sealing of the court record upon a finding that publication of a name change would jeopardize the safety of the person whose name is changed. The history of domestic violence inflicted upon petitioner, her fear of the perpetrator’s future retribution against her, and her and her children’s need to conceal their identity and whereabouts and secure their safety from the perpetrator are plainly circumstances to which section 64-a applies, dictating an exemption from publication and a sealing of the record.
In sum, based on the verified petitions and accompanying affidavits, publication of the name changes for petitioner, her daughter, and her son would jeopardize their safety. Therefore the court exempts them from the requirements of Civil Rights Law §§ 63 and 64 to publish petitioner’s and her children’s name changes and seals the records of this name change proceeding. The records may be opened only by a court order, at petitioner’s request, or at the request of her daughter or son after the child reaches age 18 years.

Because the father of petitioner’s daughter is living, even if convicted and sentenced for a felony, he retains his rights to property and to transfer it by will. His daughter retains her concomitant right to inherit from her father, regardless of any change in her name. Such a name change, however, particularly if not made public, will make it extremely difficult to locate her to distribute any inheritance. While far from a complete solution to this dilemma, the records of this name change proceeding also may be opened upon evidence that the father is deceased.

As the father neither is a party nor has appeared in this proceeding, it remains unlikely that anyone seeking to locate the daughter upon her father’s death will search this court’s records. As the father is a party to the New York County Family Court proceeding that sought an order of protection, the Clerk of this court shall transmit a copy of this decision and order and the accompanying name change order to the New York County Family Court Clerk, to be filed with the court’s records. The portion of the Family Court record transmitted from this court similarly shall be sealed and may be opened only by a court order, at petitioner’s request, at the request of her daughter or son after the child reaches age 18 years, or upon evidence that the daughter’s father is deceased.

Petitioner’s request to dispense with notice to her daughter’s father is a more difficult issue. Adults always may change their name without any court order as long as the different name is not to perpetrate fraud or interfere with another person’s rights. Where one parent petitions for a court ordered change of a child’s name, notice of the petition and of when and where it will be presented is to be served on the other parent. Civil Rights Law § 62 (1) does not contain any authorization comparable to section 64-a for a waiver of this notice upon a finding that notice of the requested name change would jeopardize the safety of the person whose name is to be changed. The only exemptions from the notice requirement are when the second parent is (1) deceased, or (2) “cannot be located with due diligence within the state, and such person has no known address without the state.” Petitioner makes no such showing here. If anything, the other parent of petitioner’s daughter is in all too frequent contact with petitioner.
Although the record indicates the father has been convicted of “crimes,” it is unclear whether he has, as yet, been convicted of a felony. Upon his conviction for a felony and sentence in a state correctional facility for longer than a day, Civil Rights Law § 79 (1) would deprive him of “all” his civil rights for the sentence’s duration, regardless of parole. The father’s rights to notice of the petition to change his daughter’s surname from his to another surname and to an opportunity to appear before the court prior to it authorizing the name change are thus among the rights suspended by a felony sentence.

While the court could exercise its inherent power to give notice of a child’s name change petition to a parent who has lost his rights to such notice, that power derives not from those lost rights, but from the requirement to determine whether the name change will promote the child’s interests. If information from the affected parent might assist that determination, the court might invite the input through notice to the parent.

Where a parent objects to the name change or even where no notice is given, but in recognition that parental rights have not been terminated, a child’s interests may dictate that a change in her surname, particularly from the objecting or absent parent’s surname to another, wait until the child is mature enough to change her name on her own or at least to understand the proceeding. Here, petitioner’s daughter is less than two years old.

Here, however, whether the father is entitled to notice or given notice in any event, it is difficult to conceive of what persuasive objection he could make to changing his daughter’s name to her mother’s name or what interest of the child would be promoted by denying the request. He could petition to change his daughter’s name back to his, should the daughter reside with him or depend on him for support, care, and guidance, for example. She also could change her name back to his upon reaching the age of majority. In this enlightened age, even a father who provides support, care, and guidance to his daughter has no more compelling claim that she bear his surname than a supporting, caring, and guiding mother has that her daughter bear the mother’s surname.

Here, the father’s identity is known, and nothing indicates his parental rights have been terminated, but the record demonstrates that any relationship he may have enjoyed with his daughter has eroded. He is not supporting her, nor does the record indicate he has offered to support her or previously supported her. Although he has attempted to communicate with her mother, his articulated motive is disturbingly contrary to any normal continuing interest in or desire to associate with his daughter. The primacy of his parental rights has given way to abuse and other misconduct which, even if not specifically directed at his daughter, is likely to have an adverse and dramatic secondary impact on her.

In view of the father’s “gross misconduct and the most flagrant violations of his duties as a father”, for purposes of disputing the mother’s request to change their daughter’s name, the father may be considered to have “abandoned” his rights under Civil Rights Law § 62 (1). If anything, the continued use of his name may stigmatize his daughter, as well as adversely affect her physical welfare.

Considering the father as thus having positioned himself similarly to other parents who have lost their rights, no perceivable information from him would assist in determining whether the name change will promote the child’s interests, so as to prompt a notice to him inviting his input. To the contrary, inviting the father’s input is likely to incite an unacceptable risk of danger to the mother and children. These circumstances are equivalent not only to the father having lost his rights, but also to the circumstances recognized as making notice to the father impossible. Based on the evidence of danger to petitioner and her children, the father of the petitioner’s daughter cannot be located and contacted without jeopardizing the safety of petitioner, her daughter, and her son.

In addition, given the father’s conduct, he is not “due” any further “diligence” as required by Civil Rights Law § 62 (1) in an effort to locate him. Viewed another way, to provide the father notice of the petition to change the child’s name would be so unacceptably dangerous as to render notice irresponsible, also lacking the statutory “diligence.” Finally, notice would defeat the purpose of section 64-a, the exemption from publication to which petitioner and her children are entitled.

In sum, where the source of physical danger entitling a person whose name is to be changed to the publication exemption is the person’s parent, and that parent, by his conduct, effectively has abandoned his rights concerning his child, the only reasonable interpretation of Civil Rights Law § 62 (1) is to permit a similar waiver of notice to that parent. Only this interpretation gives meaning to both statutes. Otherwise section 62 (1) would inflict grave risk of physical danger and illogically permit perpetration of the very threats to physical safety section 64-a is designed to avoid, completely negating the latter statute’s effect.

For all the reasons discussed above, the court thus dispenses with the requirement of Civil Rights Law § 62 (1) to give the father of petitioner’s daughter notice of the petition and an opportunity to appear before the court prior to it authorizing the daughter’s name change. As also set forth above, the court further exempts petitioner and her two children from the requirements of Civil Rights Law §§ 63 and 64 to publish petitioner’s and her children’s name changes and seals the records of this name change proceeding. The Clerk of this court shall transmit a copy of this decision and order and the accompanying name change order to the New York County Family Court Clerk, to be filed with the court’s records. The portion of the Family Court record transmitted from this court also shall be sealed. The records of this proceeding in this court and in the Family Court may be opened only by a court order, at petitioner’s request, at the request of her daughter or son after the child reaches age 18 years, or upon evidence that the daughter’s father is deceased.

An order for change of name should be published. If you wish to change your name, seek the help of a Kings Order of Protection Attorney and/or Kings Family Attorney. Call us at Stephen Bilkis and Associates.

Contact Information