MOSK, J. I concur in the order, but would qualify the rationale.
Nearly three decades ago we declared unanimously that the “essence of custody is the companionship of the child and the right to make decisions regarding his care and control, education, health, and religion” (Lerner v. Superior Court (1952) 38 Cal.2d 676, 681 [242 P.2d 321]; also see Roche v. Roche (1944) 25 Cal.2d 141, 144 [152 P.2d 999]). That principle has been respected throughout the years, most recently in In re Marriage of O’Connell (1978) 80 Cal.App.3d 849, 858 [146 Cal.Rptr. 26].
We might indulge in a fruitless debate as to whether a child’s name ranks higher on a scale of importance than his health, or his care, or his education, or the moral and spiritual values to be inculcated through his religion. But it cannot be denied that a name at most! is just one in a long list of ingredients contributing more or less to the child’s well-being and adjustment in society.
Since the law has long recognized the ability and right of the parent with custody to choose among the innumerable alternative courses involving the child’s welfare, I can see no rational reason to deny that parent a similar right to select the name with which the child will be more comfortable.
Thus I would recognize a presumption that the parent with custody —whether custody was assumed without conflict, by agreement or by court order—has acted in the child’s best interest in selecting the name. The selection may be the original name, or a name change for a child of [649]tender years. The presumption, however, would be rebuttable. Just as the noncustodial parent can seek a corrective court order if the child’s health, education or control are deleteriously affected by the abuse of custodial care, so the selection of name can be contested on the ground that it is not in the child’s best interest. The burden, however, would be on the noncustodial parent to establish the intrusion on the child’s best interest. . .
The Supreme Court of Louisiana upheld the application of a rebuttable presumption in a case almost identical to the instant matter. (Webber v. Webber (La.App. 1964) 167 So.2d 519, cert. den. on ground that result reached was correct (1964) 168 So.2d 269.) There the child was born pending a suit for the parents’ separation, at which time his given name was selected by the custodial mother, though his surname was that of the father. The court of appeals held that in order to effect a name change, the protesting father was required to make an affirmative showing that the name given “would prove detrimental to the present or future welfare of the child.” (Id. at p. 522.) Though not articulated as a presumption, the burden of proof was unequivocally placed by the court on the noncustodial parent. While it is notable that the contested name in Webber was not the child’s surname, the court did not purport to limit its holding to that circumstance.
The principle that the custodial parent should be given the choice of a newborn child’s surname has been codified by the Pennsylvania Legislature. (Pa. Code, tit. 28, § 1.7(b) (1975).) And as one commentator noted, “since the court awards custody on the basis of the child’s best interest, it can be argued that the custodial parent is acting in the child’s best interest when he or she changes its name.” (Comment, Surname Alternatives in Pennsylvania (1977) 82 Dick.L.Rev. 101, 115-116.) Thus it would seem that a parent deemed fit to have custody ordinarily should be deemed fit to select a name that accords with the child’s best interest.
An approach analogous to that proposed herein occurs constantly in cases regarding change of custody. When a noncustodial parent seeks modification of a dissolution decree in order to gain custody of a child, the trial court begins with an implied presumption that the best interest of the child is served by leaving the child “in the accustomed environment.” (In re Marriage of Mehlmauer (1976) 60 Cal.App.3d 104, 109 [131 Cal.Rptr. 325].) The parent seeking a change in custody shoulders [650]the burden of proving that the best interest of the child requires a change of custody. {Id. at p. 107.) New facts and changed circumstances must be shown to have occurred subsequent to the original custody order. (In re Marriage of Carney (1979) 24 Cal.3d 725, 730 [157 Cal.Rptr. 383, 598 P.2d 36].)
A similar presumption has been applied in cases regarding a custodial parent’s right to determine the child’s religion. The custodian will not ordinarily be deprived of custody, nor visitation rights affected, because of the other parent’s objection to the faith chosen. (Miller v. Hedrick (1958) 158 Cal.App.2d 281, 284 [322 P.2d 231].) The burden is placed on the noncustodial parent to prove the health or well-being of the child is being injured by the choice of religious practices.
A presumption that the custodial parent is acting in the child’s best interest when selecting his name would generally function to maintain the status quo, unless a showing can be made that the child’s welfare would thereby be harmed. The Court of Appeal reached the vicinity of this rule in Donald J. v. Evna M. (1978) 81 Cal.App.3d 929, 937 [147 Cal.Rptr. 15], when it declared that “where a child has used a particular surname for a substantial period of time without objection by either natural parent, the court, upon petition of one of the natural parents to change the child’s surname over objection of the other natural parent, should exercise its power to change the child’s surname reluctantly, and only where the substantial welfare of the child requires the change.”
In resolving disagreements between parents regarding their child’s surname, the “best interest of the child” test has customarily been defined in terms of the father-child relationship. (Note, The Controversy Over Children's Surnames; Familial Autonomy, Equal Protection and the Child’s Best Interests (1979) Utah L.Rev. 303, 323.) The abrogation of the father’s “primary right” to have the child bear his surname in California—as provided in the majority opinion—requires that a genuine “best interest” standard be implemented. A rebuttable presumption in favor of the custodial parent’s choice of name—when custody is in the mother—would accord due weight to the following factors which heretofore have often been subordinated to the father’s interest at the possible expense of the child’s welfare: (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 [651]cases in which the custodial mother uses her birth or previous surname. {Id. at pp. 329-330.)
With the foregoing qualification, I join in the majority opinion.