Trower v. Trower

DRAPER, P. J.

—Once again, divorced parents resort to the courts to determine the surname of their child. The minor was born in 1960. Final divorce decree of the parents, entered in 1962, awarded custody to the mother. Each parent remarried, and each has a child by the later marriage. The surname of the mother’s present husband is Dash. In 1965, Mrs. Dash, on behalf of her daughter, sought an order changing the child’s name to Elizabeth Antoinette Trower Dash. The father, Mr. Trower, opposed the application. It was denied and the mother appeals. The trial court heard evidence, including testimony of both parents, but the proceedings were not reported. , . . .....

The common law right.of;a competent adult to change

[77]

his name has not been' abrogated, and his application to make a judicial record of the change (Code Civ. Proc., §§1275-1279) will not be denied in the absence of substantial reason

(In re Ross,

8 Cal.2d 608 [67 P. 94,110 A.L.R. 217]).

At common law, a minor did not have the right to change his name. Continued application of that rule is recognized by the statute (Code Civ. Proc., §1276). Since fit parents are presumed to know and act in the best interests of their child (see concurring opinion of Traynor, J. in

Guardianship of Smith,

42 Cal.2d 91, 94 [265 P.2d 888, 37 A.L.R.2d 867]), they may apply in his behalf.

Problems arise, however, when the parents are divorced and disagree as to the change. Since the parent having custody has broad authority over the education, health, and religious training of the minor

(Lerner

v.

Superior Court,

38 Cal.2d 676, 681 [242 P.2d 321]), it could be argued that such parent should also have the primary right to choose the child’s surname. When the father does not object, this right of the mother having custody seems impliedly acknowledged