Calendar of Events
Recent Decisions Provide Meaningful Precedent for Victims of Domestic
February 1, 2004
Author: Amy Schwartz
The following is a summary of recent case law granting victims of domestic violence and their children judicial name changes:
Unpublished and Sealed Judicial Name Changes
In Re LV & J.S. for Leave to Change their Names to L.S. and C.S. - 768 N.Y.S. 2d 304 (NYC Civil Ct. 2003)
In this case of first impression, a victim of domestic violence petitioned for a change of her own name, as well as her child's name. Citing the history of domestic violence perpetrated against her by her child's father, the applicant requested both of these name changes be exempt from publication requirements of Civil Rights Law §63.
Civil Rights Law §63 provides a detailed outline of the requirements for granting an order of name change. For adults, the court must find: (1) the petition is true; and (2) there is no reasonable objection to it. Further, the adult applicant must then publish the order in a designated newspaper. For child applicants, the above provisions apply, along with a specific determination by the court that the "interests of the child will be substantially promoted by the change."
Here, the applicant requested the court allow her name change to be unpublished and the court records sealed. Civil Rights Law §64-a, the statute under which the applicant requested this special relief, allows for a change of name to be exempt from publication requirements if such publication would "jeopardize an applicant's personal safety." Although this statute specifically directs the court records be sealed, such records may be unsealed by court order at the applicant's own request or for good cause shown. This statute applies both to child and adult applicants seeking name changes.
Since its passage in 1994, victims of dangerous and persistent domestic violence and stalking throughout the state have utilized Civil Rights Law §64-a to obtain identity changes as an integral part of their safety plans. Despite its regular usage, however, there has been no published decisional law interpreting this statute to date. As a result, courts confronted with making these crucial, life-altering decisions for desperate applicants have been without any precedential guidance and support. Attorneys advising clients about their cases were uncertain about the nature and extent of the documentary evidence necessary to overcome the threshold question of how publication would jeopardize the applicant's safety.
The absence of case law interpreting this statute has also resulted in a great deal of concern and debate among attorneys and advocates in the domestic violence community about the effect of publication waivers and record sealing provisions contained within §64-a upon children. While the statute can waive the publication requirements in cases involving children, battered parents seeking to change their child's name because of abuse and danger still remain subject to stringent notice requirements outlined in §62(1) of the Civil Rights Law.
Under §62(1), if a parent applies for a name change on a minor child's behalf, non-applicant parents are entitled to notice of the proceedings (time and place of the hearing on the petition). While the §62(1) neither requires the non-applicant parent to be informed of the proposed new name nor the non-applicant parent's consent to change the name, it does allow for some amount of this parent's participation in the proceedings. By statute, waiver of notice may occur in the rare instances where the other parent is deceased or cannot be located within or without the state with due diligence. However, with proper adherence to due process notice requirements, a court is authorized to change a child's name without the non-applicant parents consent if that parent poses no reasonable objection to the change and the change is determined to be in the child' best interest.
For domestic violence and stalking victims seeking to change their child's identity because of danger posed by the batterer parent, the notice provisions of §62 and the best interests determination of §63 together can create an insurmountable hurdle. Giving the batterer parent notice has the potential to result in exactly what the applicant is specifically seeking to avoid—inciting the abuser's anger and retribution, dangerous and unwanted contact with the abuser, opportunity for the abuser to disrupt or retard the name change process, opportunity for the abuser to seek greater access to the child, and alerting the abuser to the victim's location. Although the §64-a confidentiality mandates apply to children, the statute does not allow any type of notice waiver if the person who in fact jeopardizes the child's safety is the child's own parent. Further, until recently there has been no case law interpreting the notice statute to allow for waiver of notice to parents who perpetrate domestic or other forms of family violence.
Although a viable safety tool for battered adults, Civil Rights Law §64-a can be empty and meaningless for victims and their children if the battering parent has actual notice of the petition, as well as the ability to participate in the proceedings. The absence of case law has made it very challenging to read both the notice and the non-publication laws together—especially in cases dealing with family violence. As a result, many domestic violence victims have elected to change only their own name or, in some instances, have chosen to forego any name changes at all. In situations where only the child's name remains the same, families often live in fear that the abuser will track them via the child's identifying information. The risk of being located and, potentially, harmed by the battering parent grows exponentially for those families where no name changes occur.
In In Re L.V, the applicant advised the court of her abuser's extensive history of domestic violence and threats against her, as well as violations of orders of protection. The violations of the orders resulted in criminal prosecution. As a result of the domestic violence and fears of her abuser's retribution, the applicant advised the court that she planned to relocate to a new community in order to protect herself and her child, and sought the name changes to safeguard both her whereabouts and her identity. In addition to her own testimony, the applicant offered a letter from the District Attorney's office corroborating her statements, as well as supporting her request.
The court determined that the applicant's circumstances fell within the parameters of the statute and further stated, "...the only way to protect the applicant from potential further harm is to grant her request." While the opinion did not explicitly apply the publication-exemption and record sealing provisions to the victim's child, the decision also did not indicate that the order was inapplicable as to the child. Because the §62 notice requirements to the battering parent were not at issue in this case, neither the applicant nor the court addressed this key issue.
Regardless of its brevity, this case is important for victims and their children because it provides the first crucial interpretation of Civil Rights Law §64-a.
Name Changes for Children Who Witness Domestic Violence: Addressing Waiver of Notice to the Battering Parent
Shortly after the decision in In Re L.V., both the Rensselaer County Supreme Court and the New York County Civil Court directly ruled on the issue of notice to the battering parent and its interplay with Civil Rights Law §64-a. Although reaching the same ultimate conclusions, the analysis employed by these courts varied significantly.
In Re Application of M.M., 2003 N.Y. Slip Op. 23934 (Rensselaer County Supreme Ct. 2003) In this case, a battered mother, on her child's behalf, petitioned the court for a name change and requested exemption from publication requirements and record sealing. Citing the batterer father's protracted history of domestic violence, many orders of protection, and convictions for domestic violence-related offenses, the mother further asked the court to dispense with the §62 notice requirement to the child's father.
To prove her case, the mother included a copy of the Certificate of Disposition from the criminal proceeding, copies of the orders of protection, as well as copies of numerous police incident reports and family offense petitions. While the mother advised the court that the battering parent threatened to kill the family, the facts of the case did not reveal any other offenses the father directly targeted at the child. However, the court did note that one of the orders of protection directed the father to stay away from both the child and the mother. The court found the evidence sufficiently compelling to warrant name changes for the protection of both mother and child. Because of the danger posed by the father, the court found the name change to be in the child's best interests. Weighing the §62 statutory requirements against the concerns about the family's safety, the Court elected to dispense with the notice to the father and stated:
"…Civil Rights Law §64-a enunciates a general public policy designed to protect the personal safety of individuals who apply for a change of name where there is reasonable ground to believe that their safety would be jeopardized. The provisions of Civil Rights Law §64-a are clearly applicable under the facts of this case. It would frustrate the legislative intent…and serve no useful purpose, to dispense with publication, but still require direct notice of the application to the very person who allegedly endangers the safety of the applicant." (emphasis added)
The court also granted the applicant's request for relief under §64-a and ordered all the court records sealed and the publication of the name changes waived.
This compelling opinion is the first to directly speak to the very problem a court encounters when statutory notice provisions bump heads against the confidentiality mechanisms specifically enacted for families to prevent, and hopefully, escape danger.
Matter of Jane Doe 1/9/2004 NYLJ 18 (col.3) (NYC Civil Ct. 2004)
On the heels of the decisions in In Re L.V. and In Re Application of M.M., the Jane Doe court also addressed the issues of notice and sealed, unpublished identity changes for battered parents and their children. Although reaching the same ultimate result, Judge Billings' route to the conclusion was markedly different.
Citing domestic violence, the abuser's intimate knowledge of her identifying information, as well as his fugitive status and his extensive, violent criminal record the applicant sought dispensation of notice and the relief available under §64-a for herself and her two children. The applicant also advised the court that the father was subject to a Family Court Order of Protection directing, among other provisions, that he stay away from the applicant and the children.
Addressing the non-publication issues, the court relied upon the precedent set forth in In Re L.V. and determined that the evidence presented amply demonstrated a concern that publication would jeopardize the family's safety. However, the court was mindful of the potential effect of record sealing and publication waiver on the children.
The court explicitly announced that children's rights to inherit from their father were unchanged as a result of the name changes. Concerned that the sealed nature of the name changes would make the children difficult to locate after the father's death, the court held that evidence of the father's death may provide sufficient good cause to open the records. Noting that because the father is not a party to these proceedings and, therefore, has no knowledge of them, the court directed the name change order and the corresponding decision to be filed in the Family Court family offense proceeding file. These records were then ordered sealed and to be opened only upon court order, at the children's request upon reaching the age of majority, or upon evidence that the father is deceased.
Addressing the notice issue, the court thoroughly examined the statute and the case law authorizing dispensation of waiver (i.e. deceased parent, felony convictions sufficient to suspend civil rights, inability to locate parent with due diligence). The court advised that even in cases where a court would have the legal ability to dispense with notice to the parent, giving the parent notice might assist the court with its best interest determination. In the alternative, the court noted that in fact patterns where notice was required, the father would be wholly unable to put forth any convincing objection to the name change nor be able to demonstrate what interest might be promoted if the court were to deny the child's name change. Examining modern society, along with evolving case law, the court stated that a father has no more of a compelling claim that a child bear his name than a mother does—even if the father provides support, care, and guidance to the child. Judge Billings further noted that is now commonplace to find children who bear both parent's surnames, or the surname of the mother only.
Applying this analysis to the case at the bar, the Doe court determined that by his own actions of non-support, inability to maintain a healthy or loving relationship with the child, domestic violence towards the child's mother, as well as other acts of misconduct, this father's actions are likely to have an adverse effect on the child. In light of his "gross misconduct and the most flagrant violations of his duties as a…father", the court determined that the father had effectively "abandoned" his rights to notice of name change. (citing Matter of Fein, 51 Misc.2d 1012, 1018). Notably, the court stated, "inviting the father's input is likely to incite an unacceptable risk to the mother and the children." Additionally, the court found although the father had no proper right to notice, notice was also rendered impossible because of the danger he posed to the entire family. Because of his misconduct, the court determined the father was not "due any further diligence" as is required under §62(1). Stated more forcefully, the court held "to provide the father notice of the petition to change the child's name would be so unacceptably dangerous as to render notice irresponsible." Importantly, the court indicated that giving notice of the name change would defeat the purpose of §64-a, relief which the court previously determined the family entitled.
Speaking to the very issue concerning domestic violence community, the court articulated an interpretation for reading the both §62 and §64-a together:
"…[W]here the source of physical danger entitling a person whose name is to be changed to the publication exemption…is the person's parent, and that parent, by his conduct, effectively has abandoned his rights concerning his child, the only reasonable interpretation of Civil Rights Law §62(1) is to permit a similar waiver of notice to that parent ….Only this interpretation gives meaning to both statutes."
For victims of domestic violence and their children who are forced to take the drastic step of creating new identities to stay safe, the assistance of the courts provides a crucial first step. With a name change, these clients can better safeguard their new, safe location, change their Social Security Number, and strive to create a life free of the violence and danger that plagued them. These important decisions provide courts, victims, and advocates useful precedent that will protect and, quite probably save, lives.
Copyright © February 2004 - Empire Justice Center
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