First ruling in NY state courts on partners’ right to adopt each other’s surnames
According to the opinion, the two women have lived together as domestic partners for a year and are planning to file a domestic partnership statement with the city and to start a family together. In her application, Daniels stated that she wanted to have the same last name as her partner “to reflect their commitment to each other.”
Surprisingly, no New York court has previously confronted this question, although there was a significant related decision in November 2003, in which another judge granted a change of name to a transgendered applicant to reflect her preferred gender designation. Judicial approval is not required for somebody to assume a new name, but it can be helpful, especially in getting changes made on official documents such as passports and drivers licenses, and on records maintained by private institutions, such as employers, banks, and credit card issuers. In considering formal approval to a name change, courts are concerned with whether the individual is trying to change their name to escape the taint of a criminal record, to avoid the consequences of a bankruptcy, or to commit some kind of fraud or in some way mislead the public.
In some other states, opponents of such name changes have argued that bestowing the same last name on an unmarried couple would somehow signify state approval for their relationship or, more seriously, mislead people into thinking that the couple are legally related. Feinman noted some older New York cases in which name changes for children were denied when the result might have been to mislead about their parentage, or in which name changes were denied because they would appear to be sanctioning adulterous relationships.
“The petition before this court does not involve children,” Feinman commented. “Rather, it concerns an adult who wishes to change her surname to that of her life partner, and that individual has consented. The court need not, therefore, concern itself with factors other than those of fraud, intentional misrepresentation, or interference with the rights of others.”
Feinman made particular note of a recent New Jersey appellate decision approving a name change in response to a petition from a same-sex couple. A lower court had denied the petition on the ground that approval would appear to sanction a same-sex marriage, but the appellate court reversed. Finding no fraudulent intent or criminal purpose, the appellate court ruled that the trial court exceeded its discretionary authority by treating the case as an occasion for applying “public policy.”
Similarly, in the recent New York transgender case, the court initially refused to grant the name change until receiving proof that the applicant had undergone surgical gender reassignment, but on reconsideration decided to grant the petition. The judge commented that the name change did not constitute official judgment about the applicant’s gender and that the trial court was not authorized to establish which names belong with which gender.
Feinman cited this writer’s characterization of this result as “pragmatic” in an account of the transgender name change case published by Gay City News on November 6. Feinman cited that case as showing that “the role of the court in a name change is a limited one and not to superimpose its view of public policy.”
Feinman’s order was actually issued on November 25, so Ms. Daniels has been Ms. Zaks for two months. Feinman took some time to put together a carefully researched opinion to back it up, but evidently did not want to hold up the name change until he could finish writing the opinion.
Shortly after issuing this order, Feinman, an openly gay man who is a past president of the Lesbian and Gay Law Association of Greater New York, was designated to be an Acting Supreme Court Justice in New York County.
