Herdman

Appellant challenges the portion of an interlocutory decree that changes her child’s surname from appellant’s birth name (formerly called “maiden name”) to the surname of the father and enjoins each parent from any further change without court permission.

We confront a conflict between (1) common law and custom, which have given the father a “primary right” to have his child bear his surname, and (2) the legal and moral obligations of society to respect a *642 mother’s rights regarding her child. After appraising the present-day rights of both the mother and father, as pronounced by the Legislature, we conclude that the common law should give way. The trial court premised its ruling on cases and custom that seem outpaced by recent legislative and social developments, Consequently we rule that, as in custody disputes, quarrels concerning a child’s surname should be decided according to the best interests of the child.

Ms. Herdman and Mr. Schiffman were married on January 15, 1977 aiyl separated six months later. She then was four months pregnant. On August 4, 1977, she petitioned for dissolution and noted that there was an unborn child. The child was born on November 2,…

I concur in the order, but would qualify the rationale.

Nearly three decades ago we declared unanimously that the “essence of custody is the companionship of the child and the right to make decisions regarding his care and control, education, health, and religion” (Lerner v. Superior Court (1952) 38 Cal.2d 676, 681 [ 242 P.2d 321 ]; also see Roche v. Roche (1944) 25 Cal.2d 141, 144 [ 152 P.2d 999 ]). That principle has been respected throughout the years, most recently in In re Marriage of O’Connell (1978) 80 Cal.App.3d 849, 858 [ 146 Cal.Rptr. 26 ].

We might indulge in a fruitless debate as to whether a child’s name ranks higher on a scale of importance than his health, or his care, or his education, or the moral and spiritual values to be inculcated through his religion. But it cannot be denied that a name at most! is just one in a long list of ingredients contributing more or less to the child’s well-being and adjustment in society.

Since the law has long recognized the ability and right of the parent with custody to choose among the innumerable alternative courses involving the child’s welfare, I can see no rational reason to deny that parent a similar right to select the…

I agree with the rule announced by the majority that a “child’s surname should be decided according to the best interests of the child.” (Maj. opn., at p. 642.) However, I am concerned about the lack of a clear jurisdictional basis for the trial court’s modification of a child’s name in the course of a dissolution of marriage. In such proceeding, “the superior court has jurisdiction to inquire into and render such judgments and make such orders as are appropriate concerning the status of the marriage, the custody and support of minor children of the marriage, the support of either party, the settlement of the property rights of the parties and the award of attorneys’ fees and costs ....” (Civ. Code, § 4351.) And in any proceeding under the Family Law Act other than an action for legal separation, “the court, upon the request of the wife, shall restore the birth name .or former name of the wife regardless of whether or not a request therefor was included in the petition.” {Id., § 4362, subd. (a).)

Neither of these code sections establishes whether the court in a Family Law Act proceeding has jurisdiction to change the name of a child of the marriage, or whether such a name change…

The parties were married on January 15, 1977, and separated on June 29, 1977. Their child was born on Novem *652 ber 2, 1977. The mother directed that her maiden rather than the father’s surname be placed on the birth certificate as the child’s surname. Dissolution proceedings were heard in February 1978. The trial judge granted custody of the child to the mother and reasonable visitation rights to the father. He ordered the father to pay child support of $200 per month and medical/hospitalization insurance premiums. The judge further ordered the child shall bear the father’s surname, enjoining the parties from changing the name without court permission.

Well-settled common law holds that a legitimate child shall bear the surname of its father. Case law speaks of the father’s “protectible interest” or “primary right” in having his child bear his surname. The rule is not absolute, and exceptions are allowed when required in the best interests of the child. Thus, paternal misconduct may justify forfeiture of the right. Showing that the name will be deleterious to the child may warrant a change. Stating the matter another way, there must be a strong showing of unusual circumstances…