Update: on December 6, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On September 25, 2012, the Supreme Court of Ohio heard oral argument in the case of D.W. v. T.L., 2011-1979. The issue in this case is whether the trial court abused its discretion by inappropriately granting a father’s petition to change his child’s surname to his own.

First, a declaration of bias.  Ginger Bock, the mother’s lawyer in the case at the Supreme Court level, is a 2007 graduate of the University of Cincinnati College of Law.  She was a student of mine in several classes.  This was her first argument before the high court, and I and many others at school were cheering her on. The Center for Race, Gender and Social Justice, along with the Judge-in-Residence Program offered a real-time viewing of the argument to interested students, followed by a discussion. It seems particularly appropriate, then, that the Court heard this case at Case Western Reserve University, before an audience of students.

Now, on to the business at hand.

Background Information

Tricia Laug and David White, an unmarried couple, had a child, Logan.  Logan’s birth certificate, signed by both parents, bears the name “Logan David White Laug.”  White did not live with Logan for the first eighteen months of Logan’s life.  Logan lived with his mother, and half-sister –all bearing the surname Laug.  When Logan was eighteen months, White moved in, however, he was deployed overseas for a time and subsequently stationed in another city.  When Logan was four, Laug and White separated.  The parties agreed Laug would be the legal custodian and residential parent.  White maintained visitation rights, is actively involved in Logan’s life, and provides financial support.  Laug has always been the residential parent and primary caregiver.  The sole dispute when Laug and White separated was Logan’s surname.  White petitioned the court to have Logan’s surname changed to match his own.

The magistrate granted White’s petition for a name change, concluding that the child would not be adversely affected in the long-term.  The trial judge affirmed the magistrate’s decision, adding that the surname change would reinforce the father-son family unit, and that Logan would not suffer any embarrassment, discomfort, or inconvenience in having his name changed at his young age.  Laug appealed the trial court’s decision.

The Twelfth Appellate District found that the trial court did not abuse its discretion in granting White’s petition.  Laug subsequently appealed and the Supreme Court of Ohio accepted jurisdiction. Read the oral argument preview here.

Background precedent

In 1988, in Bobo v. Jewell, the Supreme Court held that courts are to use a best-interest-of-the-child test in determining whether to allow a name change, and are to consider the following factors in making this determination: “the length of time that the child has used a surname, the effect of a name change on the father-child relationship and on the mother-child relationship, the identification of the child as part of a family unit, the embarrassment, discomfort or inconvenience that may result when a child bears a surname different from the custodial parent’s, the preference of the child if the child is of an age and maturity to express a meaningful preference, and any other factor relevant to the child’s best interest.” The Court also cautioned that  trial courts should consider only those factors present in the particular circumstances of each case.

In 1999, in In re Willhite, the Court approved, extended, and refined the Bobo factors, adding emphasis on the surname of the residential parent.  In Wilhite (authored by Justice Stratton) the Court also noted that in these times of parental equality, arguing that the child should bear the father’s last name based solely on custom is impermissibly discriminatory.

Oral Argument

Mother’s Argument

Counsel for Laug argued that this was the father’s name-change petition, and he completely failed in his burden of proving the name change was in Logan’s best interest.  His testimony—the only evidence that he offered—was only about what the name change meant to him, which is not what is required under existing precedent. The mother, on the other hand, produced evidence that Logan was developmentally delayed and very sensitive to change, and that a name change would not be in his best interest. He does now know himself as Logan Laug. The trial court misapplied the Bobo factors, did not even mention Wilhite in its decision, and failed to consider the residential parent’s surname factor. Additionally, the trial court improperly based the name change on traditional gender-based assumptions. There was no evidence that the name change was in Logan’s best interest, and that makes the decision arbitrary and an abuse of discretion.

Father’s Argument

Counsel for White argued that there was no abuse of discretion in this case. The trial judge was in the best position to see the witnesses and evaluate their credibility.  While the trial judge may not have cited Wilhite by name, she did consider the factors from that case, and the Bobo factors as well, each in turn. The residential parent factor was considered. Using custom or tradition does not automatically taint a decision or make it discriminatory on its face.

Show me the Evidence!

Chief Justice O’Connor and Justice McGee Brown really jumped on the father’s lawyer to produce the actual evidence that a name change was in Logan’s best interest. Justice McGee Brown pressed him for the exact evidence that supported his contention that the name change was in Logan’s—not the father’s–best interest. The Chief commented that she saw nothing in the record to support the trial court’s contention that the name change would strengthen the father-son relationship. She didn’t see that anything suggested it needed to be strengthened. What evidence was presented by the father that would allow this name change to go forward?  When the father’s lawyer didn’t really answer this, Justice McGee Brown pushed hard, commenting  that he hadn’t answered the Chief’s question. She asked him to tell her where that evidence was because she wasn’t seeing it.

Today’s World

Justice Pfeifer commented that kids today come to school with all kinds of names.  Was there any testimony or literature about this in the case?

Who Has a Greater Interest in the Child’s Surname?

The Chief asked if the overriding factor used by the trial court was patrilineal tradition. If not overriding, was it a factor at all? Should it be? Does a father have a greater interest in the child’s surname than the mother? (Father’s lawyer was saavy enough to say no to that one.)

And What If Mom Marries and Takes a New Last Name?

Asked Justice O’Donnell (professor’s note—this question was inevitable.) Justice Stratton asked if there was any evidence she might do that  (no). Chief Justice O’Connor noted that was pure speculation, and asked if there was any evidence the father could not have additional children, and name them  “White”.  (answer—this never came up).

Is There No Place at all for Custom and Tradition in All of This?

Asked Justice Cupp, a bit wistfully?

Evidence of Best Interest of the Child

Justice Cupp asked if the Court was looking for evidence about whether the child would or would not be disturbed if carrying the father’s surname? Was there evidence that maintaining the status quo would actually benefit the child?

Where Exactly was the Abuse of Discretion here?

Asked Justices Lanzinger and O’Donnell.

Precedent

Justice Lanzinger asked if the factors in Bobo and Wilhite were different.

How it Looks from the Bleachers

To Professor Bettman

I’ve already stated my bias, but even though abuse of discretion is tough to prevail on, I think this is a win for the mother, who wisely chose to categorize the decision as arbitrary. (rather than unreasonable or unconscionable). I also think the Court will write narrowly, based on the record in the case, and it looks like a split decision, with the Chief, and Justices McGee Brown and Stratton leading the charge for the mother; Justice Cupp for the father. I think Justice Pfeifer will go with the mother, to make a majority.  Interestingly, the three men on the Court voted not the take this case, but I don’t think they are on the same side, now that it has been argued.

As Justice McGee Brown put it, the trial court never articulated how the name change benefitted Logan, and the father never proved the name change was in Logan’s best interest, rather than in his own.  But in order to be something more than just error correction, I think the Court is likely to disapprove any automatic presumption that the child should carry the father’s surname, to re-emphasize the equal rights of parents to the child’s surname, and to disapprove the automatic assumption women will marry or remarry and take their husband’s name. The Court may state that tradition and custom are not totally irrelevant, but must be tied to the best interest of the child in a particular case.

To student contributor Katlin Rust:

Katlin thinks this case could go either way.  The father’s case should have failed at trial as a matter of law; even arguing before the Supreme Court, he was unable to offer any evidence on the record showing that the change would be in Logan’s best interest – the legal standard.  However, this case is not about the sufficiency of the evidence, rather, it concerns abuse of discretion, a difficult standard to meet.  It appears that the Chief Justice and Justice McGee Brown are firmly with the mother, and apparently irritated with the father’s inability to offer evidence of the benefit to Logan.  This gives direct credence to mother’s argument that the trial court’s decision was arbitrary, and  therefore an abuse of discretion.  Justice Stratton also appears to favor the mother’s position, bringing in her own experiences to show the inaccuracy of the trial court’s judicial notice that women change their name upon marriage.  Justices Cupp, Pfeifer, and O’Donnell were relatively quiet, and, given the high standard, they could easily find that the judge did not abuse her discretion since she addressed all the relevant factors.  Justice Lanzinger is the swing vote. Her concern appears to be whether the trial court followed the appropriate factors.  How she decides could likely decide the case.