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HomeMy WebLinkAbout2012-6729 STEVEN MICHAEL FRY, : IN THE COURT OF COMMON PLEAS Plaintiff, : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : : : CIVIL ACTION - LAW REBECCA MCKINLEY FRY, : No. 12-6729 Civil Defendant. : : OPINION AND ORDER This matter comes before the court on a petition filed by Steven Michael Fry, biological father of Jenna Lee Foose, born on October 30, 2011, requesting a change of name for the child to Jenna Lee Fry. (Pet. for Name Change of Minor Child, filed Nov. 5, 2012). A hearing on the matter was held before this court on May 10, 2013. The petition and hearing established the following: Steven Michael Fry married Rebecca McKinley Fry on March 12, 2009. (Notes of Testimony, 7, In Re: Tr. of Proceedings, May 10, 2013 (hereinafter “N.T. __”)). During the marriage, the parties found out that Rebecca was pregnant with Jenna Lee; however, the couple separated two days later. (N.T. 5). Though Steven avows that he tried to contract Rebecca to inquire about the pregnancy and to express his desire that the child be given his surname, he was given little information and had limited involvement throughout the pregnancy. (N.T. 5). The relationship between the parties was troubled, in part, due to Steven being incarcerated and allegations of adultery concerning Rebecca. (N.T. 4, 5, 7). When Jenna Lee was born, Rebecca used her maiden name to check into the hospital and did not include Steven’s name on the birth certificate. (N.T. 4). Initially, there were concerns regarding the paternity of Jenna Lee. (N.T. 4-6). However, paternity testing has confirmed that Steven is the biological father of Jenna Lee. (N.T. 6). Since Steven was incarcerated at the time of Jenna Lee’s birth, Rebecca was initially, and continues to be, the primary caregiver for Jenna Lee. (N.T. 13). The parties also have a son together who bears the surname “Fry.” (N.T. 4). Additionally, Rebecca has a child from a previous relationship that bears the surname “Foose.” (N.T. 6). All three children primarily reside with Rebecca. (N.T. 12). At the time of the hearing, Steven was no longer incarcerated, had his name added to Jenna Lee’s birth certificate, and obtained shared legal custody and unsupervised visitation with Jenna Lee. (N.T. 4, 5, 8, 9). Rebecca testified that she is seeking a divorce from Steven and plans on retaking the “Foose” name when the divorce is finalized. (N.T. 14). Steven testified in support of having Jenna Lee’s name changed from “Foose” to “Fry.” Steven stated that his main concern is that, when Jenna Lee gets older, she will have to explain to children why her surname is different than that of her biological father and brother. (N.T. 4-5). Steven also testified that he has brothers and sisters with the last name “Fry” and that those brothers and sisters have children with the last name “Fry.” (N.T. 6). Steven further expressed that he has a bond with Jenna Lee, that he wants to be a father, and that he wants to be in Jenna Lee’s life. (N.T. 9-10). In Rebecca’s testimony in opposition to the name change, she stated that the “Foose” name is well-known and family with that name lives nearby. (N.T. 13). Those family members are cousins and a half-brother. (N.T. 15). When addressing whether or not it would be confusing for Jenna Lee to have a last name different from that of her brother who shares the same father, Rebecca stated that there are concerns about the “Fry” name not being in good standing. (N.T. 16-17). Elaborating on this, Rebecca was forced to acknowledge that she did not have any proof of her concerns. (N.T. 17). Regarding the choice of name for children born in wedlock, the Pennsylvania statute states: 2 (a) The designation of a child's name, including surname, is the right of the child's parents. Thus, a child's surname as recorded on its birth certificate may be the surname of either or both of the child's parents, a surname formed by combining the surname of the parents in hyphenated or other form, or a name which bears no relationship to the surname of either parent. (b) If the parents are divorced or separated at the time of the child's birth, the choice of surname rests with the parent who has custody of the newborn child. 28 Pa. Code § 1.7. “Custody,” as used in Section 1.7(b), refers to legal custody. Petition of Schidlmeier by Koslof, 344 Pa. Super. 562, 569, 496 A.2d 1249, 1253 (1985). “The court of common pleas of any county may by order change the name of any person resident in the county.” 54 Pa.C.S.A. § 702(a). Our Supreme Court has ruled that the best interest of the child control when considering a petition to change the name of a minor child and that the petitioner bears the burden of establishing that a change would be in the best interest of said child. In re Grimes, 530 Pa. 388, 393-94, 609 A.2d 158, 161 (1992). With each situation being unique, specific guidelines are hard to establish, but “general considerations should include the natural bonds between parent and child, the social stigma or respect afforded a particular name within the community, and, where the child is of sufficient age, whether the child intellectually and rationally understands the significance of changing his or her name.” Id. Rebecca contends that the holding in In re Name Change of C.R.C., 2003 Pa. Super. 91, 819 A.2d 558, requires that we deny the petition. In C.R.C., mother and father had a child while married but separated. Id. at ¶ 2, 819 A.2d at 559. Even though mother was still using the father’s surname at the time of the birth, the mother listed her maiden name as the child’s surname on his birth certificate. Id. After leaving the hospital, mother took physical custody of the child and made it difficult for the father to have contact with the child. Id. The father filed a petition to have the child’s surname changed to his, and, by the time of the hearing, the couple 3 was divorcing. Id. at ¶ 4, 819 A.2d at 560. Upon reviewing the facts and case law, the Superior Court held that the trial court abused its discretion in granting the father’s petition to have the name changed. Id. at ¶11, 819 A.2d at 561. In deciding that the trial court was unable to present a sufficient rationale to justify the granting the name change, the Superior Court noted that the tradition and custom of patrilineal naming is not sufficient to conclude that a name change is in the child’s best interest. Id. Moreover, the court found that the mother’s interference in the relationship between the father and child did not, by itself, justify a name change as it was not clear how a change in surname would foster a bond between the father and child. Id. at ¶ ¶ 13- 14, 819 A.2d at 563. Steven’s main contention is that having the surname “Foose” will lead to confusion and embarrassment since Jenna Lee’s surname will be different from that of her father and biological brother. While we recognize this concern, granting his petition would still result in Jenna Lee having a surname different from a sibling, though the sibling would be one of half-blood, and from her mother once Rebecca retakes the surname “Foose.” In other words, whether Jenna Lee has the surname “Foose” or “Fry,” there will be differences among surnames within the family unit. Furthermore, while a bond between the father and child has been established, it has not been demonstrated how a name change would strengthen that bond or a refusal of the name change will weaken it. Regarding the social stigma and general standing attached to either name, we have only been presented with unsupported, general accusations from both sides. Finally, it is clear that at Jenna Lee’s current age she cannot understand the significance of a name change. 4 ORDER th AND NOW, this 27 day of June 2013, upon consideration of the Petition for Name Change of a Minor Child, and after a hearing held on May 10, 2013, for the reasons contained in the opinion filed of even date herewith, the petition is hereby DENIED. BY THE COURT, __________________________ Kevin A. Hess, P.J. 5 STEVEN MICHAEL FRY, : IN THE COURT OF COMMON PLEAS Plaintiff, : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : : : CIVIL ACTION – LAW REBECCA MCKINLEY FRY, : No. 12-6729 Civil Defendant. : : ORDER th AND NOW, this 27 of June 2013, upon consideration of the Petition for Name Change of a Minor Child, and after a hearing held on May 10, 2013, for the reasons contained in the opinion filed of even date herewith, the petition is hereby DENIED. BY THE COURT, __________________________ Kevin A. Hess, P.J. Steven M. Fry th 2244 N. 7 Street Harrisburg, PA 17110 Plaintiff Steven M. Fry 128 East Azelea Drive Harrisburg, PA 17110 Plaintiff John J. Mangan, Esq. 17 West South Street Carlisle, PA 17013 For the Defendant 7