Legal Questions About Names for Children

Should a court step in if a child's name could do harm?



Illustration by Alicyn Murphy

ATennessee judge made headlines recently for renaming a 7-month-old baby boy “Martin,” because his given name, “Messiah,” was reserved for Jesus Christ and this would “put him at odds” with many Christians. Maybe the judge was thinking back to another judge from the Volunteer State — Sue K. Hicks or the country-western song that made him the real “boy named Sue.”

 Hicks was the inspiration for the Shel Silverstein poem “A Boy Named Sue.” The poem-made-song became Johnny Cash’s biggest hit. It told of the troubles of growing up with a feminine name. While “life ain’t easy for a boy named Sue,” he realizes in the end that his father’s motivation was tender. “Son, this world is rough,” Sue’s father said, “and if a man’s gonna make it, he’s gotta be tough … And it’s that name that helped to make you strong.”

Sue K. Hicks, who was named after his mother who died in childbirth, was a prominent judge and prosecuting attorney in the 20th century.  Beyond his name, he is most famous for his role as the instigator and part of the mock prosecution team that brought charges of teaching evolution against John Scopes in 1925.

While Hicks never begrudged his father, sociologists and the legal system have confirmed that names do matter by making a first impression that can be hard to shake. Studies have found boys with unusual or more feminine names are more prone to trouble, delinquency and prison.

Some states have prohibited bizarre and obscene names, while others forbid the use of numerals and the limit total number of letters. New Hampshire has no formal restrictions, but there is one ever-so-slight technical limitation. The state’s vital statistics computer system is incapable of including special characters other than apostrophes and  dashes.  So, “O’Connor,” is OK, but “Chacú” is not (and neither is Coös, the Native American-derived name of the state’s northernmost county, which has a dieresis), according to a scholarly paper by University of California,  Davis, Law Professor, Carlton F.W. Larson. Others disagree and say this is just a reporting system and the official record is the birth certificate.

Carlton does note that restricting parental naming rights is subject to strict scrutiny under both the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment. So any state action, like the one in Tennessee, will be tested in the federal courts.

With scant case history and a long tradition respecting parental prerogative, the “Live free or die” state relies on a common law approach that gives parents nearly unlimited latitude to name their children what they want, and as children grow older, that right becomes more recognized by the court. Children under the legal age of maturity, however, have the right to make a formal request to the court to change their name. No cause is needed.

Just a half-century ago, a Grafton County judge presiding over a naturalization hearing casually asked a Canadian-born teenage boy named “Yvonne” whether he wanted to retain his first name or change it to a more popular American one. Earlier in the state’s history, when immigrants were flooding the state, it was even more  cavalier and confusing, and such legal records were more often kept at the church and the municipality. 

With all this history, judges are going to be very cautious about inserting themselves in such matters and, of course, there are no state bureaucrats scanning birth certificates for outlandish names, says Concord Attorney Jack Crisp. dJudges, he says, “will defer to the preference of the parents and not interfere [based] on their own tastes.”

Such cases are more likely to come as a result of disputes between parents and will be guided by RSA 461A, the “Domestic Relations” statute. This statute broadly covers parenting plans, child custody and parental responsibility. The so-called “best interest” or “overall welfare” standard is used to settle disputes over minor children. It empowers the court to make decisions for minor children when their parents are unable to, and as the basic family unit changes, these disputes are increasingly ending up in court. 

 One such case, involving a custodial mother’s right to provide her son with her last name, not the child’s father’s name, raised more questions than answers. In 2010, a 16-year-old North Country girl became pregnant by her 15-year-old boyfriend. Initially (before birth), the boy was somewhat reluctant to accept responsibility and the girl took it upon herself to name the child. The boy’s family challenged the process and a local marital master ruled that the baby had “two parents who both care for him and love him” and therefore both names “should be demonstrated in … [the child’s] name.

"Just a half-century ago, a Grafton County judge casually asked a Canadian-born boy named ‘Yvonne’ whether he wanted to retain his first name or change it to a more popular American one."

The paternal name won out, but as a consolation the mother’s surname became the child’s middle name. The case was appealed to the state’s Supreme Court.

Concord Attorney Joshua Gordon, who took over the case upon appeal on behalf of the girl, argued that the “best interest” standard is “vague, undefined, arbitrary and naked” and reflects “sexist social conventions.”  

He pointed to several factors that should be considered in such cases, including how the change would impact the parent-child relationship, which parent could best financially provide for the child and, as New Jersey does, reserving preference to the custodial parent.  

Attorney Crisp, who represented the boy from the start, argued that the court should maintain “wide discretion” and not adopt a strict formula for settling such disputes because of the diversity of cases. Crisp said gender bias was not an issue and was not mentioned until the appeal. “What’s most important,” he said, “is what is in the best interest of the child. That’s what the court said.”

The Supreme Court upheld the lower court’s decision and stuck with the more elastic standard and stayed clear of setting any legal precedent. The majority of the justices concluded that “no parent should benefit from a presumption in child-naming disputes.” And nor would any lower court judges.

Most legal observers agree that the Tennessee case removing Messiah will be overturned. But what about those repugnant names — such as the New Jersey boy legally named Adolph Hitler or the comical ones like the one blocked in New Zealand, Talula Does The Hula From Hawaii?

These examples don’t give lawyers like Gordon much concern. He’s confident the court will intercede. 

“The dastardly names are easy cases,” he says. “They’re likely to cause a child real harm.” Or perhaps, like “A boy named Sue,” serve to make the children strong. 

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