Monday, August 12, 2013

Tonight on "I Don't Think You Can Do That, Your Honor"

In an ideal world, all children would be born into happy, uncomplicated, drama-free situations where the parent or parents had no conflict, no financial difficulties, and could focus on providing all the kisses and puppies and educational opportunities any kid could hope for. In this ideal world, it goes without saying that if there are two (or more) parental type units, they would all come to an easy agreement about something as the kid's name. Oh, and unicorns would deliver coffee and candy and mojitos all day long.

But, of course, we don't live in an ideal world. Kids are born to couples who break up and then can't agree on what last name the kids get. So, sadly, there is a body of case law that dictates how judges should make decisions when parents come to court to settle the name issue. As with most issues surrounding children, the prevailing standard seems to be the best interests of the child. There are numerous factors judges should consider in determining what is in the best interest of the child: things like custody, names of siblings, whether the child might be confused about who the parents are, etc. And generally reviewing courts will look to whether the trial judge abused his or her discretion in applying that standard.

Today came headlines of a child support magistrate in Cocke County, Tennessee (not pronounced "cook") who had just such a case come before her. The mother had put her own surname (Martin) on the birth certificate when her now 7-month-old son was born. The father (not married to the mother) wanted it to be his name (McCullough). So what did the magistrate judge do? Out of left field, she renamed the kid entirely! Martin McCullough! (She did keep the middle name the same.)

Why the name change? Because the child's given name is Messiah and that does not sit well with Lu Ann Ballew. "The word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ," she told a local t.v. station.

I trust that everyone but the trolliest of trolls and Ms. Ballew herself gets what's wrong with this ruling. I would think the establishment of religion violation would be clear enough.  (As in a US court doesn't get to use a religious belief as a basis for a court ruling, which is exactly what this judge did per that quote.) There's also the interference in fundamental rights aspect of a court or other governmental agency not having any say whatsoever over certain aspects of parenting. Like what the parents choose to name the kid. Since here, Mom and Dad agreed to the first name, the judge had no say over that whatsoever.

That's what made this case make news and what all the news reports are focusing on. But I'm so curious about the other part of it, the part where the judge also gave the kid the dad's last name. And none of the news reports are even mentioning that part! I've tried to find a more thorough article that might go into it. Or a written decision from the judge explaining the decision. Based on what she did with the first name, I just have this feeling that the judge doesn't have a better explanation than "kids carry the dad's last name." That would be a definite abuse of discretion. (It would violate the equal protection clause to say that a father has superior naming rights over the mother.) Obviously, the last name thing isn't what makes this case unusual, but this law nerd really wishes she knew more about the rest. (Basic things like what's the custody arrangement? We know the baby has siblings through the mother: are they full siblings who both have dad's name? Or are they half siblings who have mom's name?)

In the end, I'm pretty confident that the entire name decision will be overturned on appeal (yes, Mom is appealing, naturally, and it sounds like the ACLU might get involved). And why am I so confident? Because, Your Honor, you can't actually veto a name the parents agreed on based on your own religious views. Duh.

No comments:

Blog Designed by : NW Designs