In Emma v. Evans, 424 N.J. Super. 36 (App. Div. 2012), the Appellate Division addressed the question of whether the presumption in favor of the parent of primary residence who seeks a surname change for a child, established in Gubernat v. December, 140 N.J. 120 (1985), where the parents were unmarried, applies to a child whose parents were married but got divorced. The Appellate Division’s decision is discussed here. The panel ruled that the Gubernat presumption does not apply where the child was born in wedlock to parents who later divorce. The Supreme Court has now granted review of that decision.
It is not surprising that the Court granted review, since the Appellate Division was faced with the task of applying or distinguishing a presumption created by the Court. The likelihood of review was increased, however, when a different panel of the Appellate Division decided Holst-Knudsen v. Mikisch, ___ N.J. Super. ___ (App. Div. 2012), which differed from Emma to some extent. As discussed here, the Holst-Knudsen opinion practically invited the Supreme Court to review the issue raised in the two cases, and it seemed likely that review would be forthcoming. Now, it has come forth.