Lisa Kelly, Divining the Deep and Inscrutable: Toward a Gender-Neutral, Child-Centered Approach to Child Name Change Proceedings, 99 W. Va. L. Rev. 1 (1996), https://digitalcommons.law.uw.edu/faculty-articles/320
West Virginia Law Review
name changes, surnames
While largely a matter of social convention, the surnames that children bear have been regulated by the law as well. In certain circumstances, the law has attempted to regulate the surnames given to children at birth, but more often the law has come into play when a change of name is sought for the child: It is at this point that the law dictates to family members what it values and what it will forbid as the law goes about the business of enforcing societal norms. This article will look at the role of naming and name changing and the ways in which the law of child name change now stands at that crossroads of deliberation where the social norms once taken for granted are being critically examined.
In Part II, a brief history of the origin of surnames will be explored. To a large extent, the history of surnaming originated in response to a state need to name and lay claims upon its citizenry. Not only did surnaming enable the state to account for and regulate its citizens; a conforming structure of surnaming also imposed the dominant culture upon. that citizenry. The custom of surnaming reflected and shaped both the structure of the child's relationship to the family and the acculturation of outsider ethnic groups into dominant society.
In Part III I will survey the legal conceptualization of the status of the child as it is revealed ultimately in naming practices and name change contests. I will examine the ways in which the standards employed dating from English common law effectuate gender-determinative decisions in what the law often stages as a battle between a father and mother to name and thereby claim authority over the child. Historically, children born in the context of marriage have been viewed as children of the father, while children born outside of marriage have been viewed as children of the mother. Naming conventions continue to reflect these configurations.
In Part IV, I will focus upon those gender-neutral, child-centered approaches which have been adopted in other states. Three basic approaches exist, some of which have been more successful in achieving gender-neutral, child-centered results than others. The first approach requires the application of the vague "in the best approach with factors." Under this approach, judicial discretion is directed toward an examination of those factors which the courts or legislators have decided are relevant to the child's best interest in the name change context. In order to determine whether these factors actually are relevant to the child's interest in his or her name, I will look at the literature from a variety of sources which attempts to divine the deep and inscrutable value of names for children. Finally, I will examine an approach recently adopted in New Jersey which holds that decisions regarding the child's name should reside primarily with the child's custodian. Under this approach anyone seeking to argue against the custodian's choice should bear the burden of proving by a preponderance of the evidence that the chosen name is not in the best interest of the child.
Finally, in Part V, I will look at West Virginia's law governing child name change and will propose reforms in the standards that are presently in use. I will show that West Virginia's law of child name change has lagged behind the child-centered, gender-neutral way that children's interests within the family are otherwise considered under West Virginia case law. I will propose a new standard for child name change in West Virginia that is grounded in the principles underlying the law presently in place for custody determinations. West Virginia has led the way nationally in developing child-centered, gender-neutral standards in the custody area. I will argue that these same principles can be applied to the law of child name change in order to free naming from the law's propensity to characterize children as property of either the father or mother.