What’s in a Name?

Published in Chicago Lawyer Magazine, April 2018
by Daniel R. Stefani

It is very rare in a pending divorce where the litigants have a dispute over the children’s surname, so when I came across the case of In Re Marriage of Piegari, 2016 Ill.App.2d 160594, it was worth a look. In 2016, during the pendency of their divorce proceedings, Karen Piegari filed a petition seeking a Court order to change the children’s surnames pursuant to Section 21-101 of the Illinois Code of Civil Procedure. Earlier in the proceedings, the Court entered an agreed parenting plan which allocated to Karen a majority of the parenting time but granted both parties equal decision making responsibilities for the children. At the time of filing, the parties’ dissolution case was still pending in the Trial Court.

In Karen’s petition, she alleged that her plan was to resume the use of her maiden name “Crider”. Therefore, she wished the Trial Court to hyphenate the children’s surnames to “Piegari-Crider”. She argued that such a change would avoid future confusion when enrolling the children in school and extracurricular activities.

Additionally, Karen argued that hyphenating the children’s surnames would allow them to “appreciate and enjoy their cultural heritage”, since “Piegari is Italian and Crider is Scottish”. Finally, she argued that the children, one age 4 and two age 2, were young enough that changing the name would not cause them any confusion or be problematic in adjusting the children to their school and community.

The father, Alexander, argued that it was not in the children’s best interests to hyphenate their surnames and requested that the Court enjoin Karen from representing the children’s name as “Piegari-Crider”.

Under Section 21-101 of the Illinois Code of Civil Procedure, in considering whether to change a child’s surname, the Court is required to consider for each child all “relevant factors” including but not limited to (1) the parents’ wishes; (2) the child’s wishes and the reasons for those wishes (it is noteworthy the Court may interview the child in Chambers with the presence of counsel for both parties and with a court reporter present); (3) the interaction and interrelationship of the child with his or her parents or other extended family members, including step-parents, siblings, step-siblings and the like; (4) the child’s adjustment to his or her home, school and community.

After considering these factors, the Court must find by clear and convincing evidence that the change is necessary to serve the best interests of the child. The Courts have defined clear and convincing evidence most often as “the quantum of proof that leaves no reasonable doubt in the mind of the fact-finder as to the truth of the proposition in question”.

In Alexander’s response, he also noted that Karen had “already taken it upon herself to unilaterally hyphenate the children’s surnames in public documents”. Specifically, one of the children had been hospitalized and underwent surgery and Karen represented the child on a web page under the name “Piegari-Crider”.

After a hearing in the Trial Court, the Court denied Karen’s request to hyphenate the children’s names and granted Alexander’s request to enjoin her from hyphenating the children’s surnames on any “official document”. The Court noted that those documents included but were not limited to “school records and medical records”.

Karen appealed the Court’s Order. The Appellate Court first found that they had jurisdiction under Illinois Supreme Court Rule 307(a) which provides for an interlocutory review of an order granting an injunction. The Appellate Court included in the appeal the name change request because it was part of the same injunctive order.

In the appeal, Karen argued the same points as set forth at trial but added additional arguments stating that hyphenating the children’s surnames would be less disruptive than placing her maiden surname first as she could have requested at the Trial Court level. The Appellate Court dismissed that argument since there was no evidence or offers of proof to the Trial Court on that point. Karen additionally argued that the children’s name should be changed since she was the parent who exercised approximately 80% of the parenting time with the children and therefore, would be responsible to enroll the children in school and extracurricular activities. The Court rejected such argument citing that the father had equal decision-making responsibilities under the parties’ agreed parenting plan and therefore, did not support her argument. The Court then affirmed the Trial Court’s order denying Karen’s request for hyphenation of the children’s surname.

The Court then reviewed the Trial Court’s injunctive order enjoining Karen from hyphenating the children’s surname in public documents. The Appellate Court found that the injunction was justified by the evidence and was appropriately tailored to the circumstances of the case. The Court noted that prior Supreme Court decisions have established a rule that an order enjoining the custodial parent from changing a child’s name must be limited to preventing that parent from changing the child’s name “in any legal proceeding or using any other name in official records or membership applications or records”. The Court then noted that in the current age of social media, the question of what constitutes an official record is uncertain. Nevertheless, the Appellate Court stated that the injunctive language in this order adhered to the prior established Supreme Court decision and adequately set forth an appropriate scope.