Sex Discrimination in Child Naming Law

If the parents of a child disagree about what last name give the child, who prevails? Today’s Mississippi Supreme Court decision in Rice v. Merkich applies a Mississippi statute that generally favors the father’s name.

I think that’s probably an Equal Protection Clause violation, based on precedents dating all the way back to Reed v. Reed (1971) (and even more clearly under the more recent case law that imposes a very high burden on the government to justify sex classifications). It’s certainly convenient to have a simple rule; and there may be practical reasons why the state might rationally want to use naming as a means of strengthening the father-child bond (based on the generalization, likely accurate, that the mother-child bond generally tends to be stronger, and thus less in need of strengthening). But under modern Equal Protection Clause precedents, that is not generally enough to justify a sex classification.

The Equal Protection Clause objection apparently wasn’t raised, and wasn’t mentioned by the majority opinion; so it’s extremely unlikely that the U.S. Supreme Court will consider this. Still, I thought that the issue was interesting and worth blogging about; here’s an excerpt from the opinion:

¶ 1. Jessica Rice appeals the judgment of the Madison County Chancery Court changing the surname of her minor child to that of the father pursuant to a paternity action. As this is a case of first impression, this Court must interpret Mississippi Code Section 93-9-9(1) of the Mississippi Uniform Law on Paternity. For the reasons stated herein, we affirm the judgment of the chancellor….

¶ 2. Jessica Rice and Scott Merkich had been dating on and off for about two years when they discovered that Rice was approximately eight weeks pregnant in June 2007. Rice and Merkich were living together at the time of the pregnancy. Rice and Merkich had planned to get married, but they ultimately ended the relationship on August 25, 2007, and Rice moved in with her parents. Rice admitted that she had dated other men while she and Merkich were broken up, and Merkich questioned the child’s paternity. However, the parties remained in contact after the break-up. Prior to ending the relationship, Merkich accompanied Rice on two doctor’s visits. After the break-up, Merkich planned to accompany Rice to at least one other doctor’s visit, but Rice changed the date of the appointment without informing him of the new time. Merkich also contributed to the payment of two medical bills related to the pregnancy.

¶ 3. The baby was due January 22, 2008, but was born on January 3, 2008. Rice did not contact Merkich when she went into labor and, thus, he was not present when she gave birth to the baby girl, which Rice named Presley Annsleigh Rice. Rice did not inform Merkich of Presley’s birth until January 6, 2008, the day after she was discharged from the hospital.

¶ 4. On January 16, 2008, Merkich filed a Petition for Determination of Paternity, seeking paternity testing. The parties agreed to DNA testing, and the results established a 99.98 percent probability that Merkich is Presley’s father. Thereafter, Merkich filed in that same action on March 7, 2008, a Complaint for Determination of Child Custody and Visitation. Merkich asked for joint legal and physical custody of Presley, asked that her surname be changed to Merkich, and stated that he was willing to pay his statutorily-required child-support obligation….

¶ 5…. After hearing evidence and testimony, the chancellor found that Presley’s surname should be Merkich….

¶ 8. Mississippi Code Section 93-9-9 of the Mississippi Uniform Law on Paternity states, in relevant part: “In the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.” Although the statute does not delineate those circumstances where the “judgment specifies otherwise,” it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child, if, and only if, this is a contested issue. In other words, “in the event of court-determined paternity,” where a party to the action contends that the surname should not be “that of the father,” then, and in that event, that party must prove by a preponderance of the evidence that it is in the child’s best interest that the surname not be “that of the father.” …

¶ 9. In the instant case, the statute’s plain language clearly indicates that Presley’s surname shall be Merkich unless Rice proves by a preponderance of the evidence that it is in the child’s best interest that her surname not be Merkich. Such an interpretation is consistent with and supported by other relevant statutory provisions and Department of Health rules….

¶ 11. Such a finding is also consistent with the Rules Governing the Registration and Certification of Vital Events by the Mississippi State Department of Health….

¶ 12. … Rule 18 states:

The surname of the child shall be determined in the following manner:
1. Mother married. If the mother was married at the time of conception or birth, or at any time between conception and birth, the surname of the child shall be that of the husband except that a statement, signed by both the listed mother and husband, and witnessed by a health facility representative, filed at the same time as the birth certificate is filed may alter this rule.
2. Mother not married; no acknowledged father. If the mother was not married at the time of conception or birth, or at any time between conception and birth, the surname of the child shall be that of the legal surname of the mother, except that a statement, signed by the listed mother and witnessed by a health facility representative, filed at the same time the birth certificate is filed may alter this rule.
3. Mother not married; acknowledged father. If the mother was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges such paternity, the surname of the child shall be that of the father except that a statement signed by both the listed mother and the acknowledged father, witnessed by a health facility representative, and filed at the same time the birth certificate is filed may alter this rule. The Acknowledgement of Paternity affidavit may be rescinded under Rule 19–Rescission of acknowledgement of paternity, upon rescission the father’s information will be removed from the birth certificate and the surname of the child will be changed to the legal surname of the mother at the time of birth.
4. Court-determined paternity. In the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.

LAMAR, JUSTICE, [joined by Dickinson, Justice,] DISSENTING:

¶ 21. If, as this Court has held for generations, the “polestar” consideration in matters dealing with children is the best interest of the child, then I must begin this dissent by asking the question: Was the name change ordered by the chancellor in the best interest of the child, Presley Annsleigh Rice? We, of course, don’t know, because the chancellor was clearly under the erroneous impression that she was statutorily required to order the name change. Because I believe our chancellors should change the name of a child only when doing so is found to be in the best interest of the child, I respectfully dissent….

¶ 26. Without explicitly so finding, the majority seems to accept Merkich’s argument that Section 93-9-9(1) creates a presumption that bearing the paternal surname is in the best interest of the child. In my opinion, no presumption exists in favor of either party and any such legislatively created presumption would raise serious Equal Protection concerns. [Footnote: See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725-26 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (requiring a close relationship between a state’s objective and means in order to assure that the “validity of a [gender] classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women”); see also Rio v. Rio, 504 N.Y.S.2d 959, 962 (N.Y.Sup.1986) (finding that “Equal Protection arguments against a paternal surname presumption are most persuasive”).] …