By Olli Baker (Law Librarian, Rensselaer Supreme Court Law Library)
New York’s Civil Rights Law provides a series of statutes that allow a petitioner to file for a name change (Civil Rights Law art 6). The name change can be for an adult individual, or for an “infant,” defined at law as someone under 18 (CPLR 105(j)). Because an infant (probably more commonly referred to as a minor) cannot as a general rule institute a legal proceeding, an adult has to institute the proceeding for them (CPLR 1201). With name changes this is as a matter of practice usually the parent.
Per section 61 of the statutes, the “petitioner” must make a series of declarations: has the petitioner ever been convicted of a crime, has the petitioner declared bankruptcy, does the petitioner owe spousal or child support, etc. The idea is to make sure the individual in question is not seeking a name change to perpetrate fraud or wiggle their way out of existing responsibilities. With an adult petition the petitioner is simply the individual who wants their name changed. But with an infant name change there are two parties involved: the parent and the infant. Which raises the question: who is the “petitioner” to whom the declarations apply?
This question was addressed by the Suffolk County Supreme Court in In re: Reine, where the parent submitted a standard form petition created by the court system which designated the infant as the petitioner (Matter of Reine R. (Gabriel N.M.), 57 Misc.3d 444 (2017)). The court rejected the petition, stating that “[i]t is axiomatic that an infant cannot represent himself or herself in a civil proceeding,” (id. at 447) pointing to the language of the statutes and reciting various policy concerns. The statutorily required declarations therefore applied to the parent, not the infant, and the petition was deemed legally insufficient, standard form or not.
The Reine court’s conclusion seems correct from a policy standpoint, given that the declarations appear to implicate people over the age of infancy. Under most circumstances infants do not have the capacity to enter contracts, and contracts actually made by an infant can be invalidated on those grounds (see e.g. General Obligations Law § 3-101). It seems odd then that an infant would even have the capacity to declare bankruptcy (technically there is no minimum age to declare bankruptcy, which is a product of federal law, but relevant state laws can set a minimum age for practical purposes). The same would seem to hold mostly true for spousal and child support obligations, simply because most people under 18 are too young to incur such obligations. And while people under 18 can commit crimes, it is an odd question to ask in most of the cases that make their way through the library, where the infant in question is often safely of childhood age, and who even given exceptional precociousness or the benefits of Montessori education seems unlikely to rise to the occasion.
Unfortunately, the statutes can plausibly be interpreted either way, and to my knowledge at least two judges outside of Suffolk County have ruled to the contrary. Section 60 as relevant here states that “[t]he petition to change the name of an infant may be made by the infant through his next friend, or by either of his parents, or by his general guardian, or by the guardian of his person.” This can be interpreted to mean that the infant is making the petition (you could say the infant is the real party in interest), or it could be interpreted to mean that the parent is making the petition. If the statute said “an infant petition may be made by the parent” then there would be a better indication that the parent was meant to be the petitioner. But by saying the petition “may be made by the infant…by either of his parents” the best that can be said is that the language creates an equivalency, as the word “by” is used to refer to both parties.
Section 61 states that the petition must be “signed by the petitioner.” Section 62 states that with an infant name change notice must be given to both parents “unless the petition be made by one of the parents….” This language more strongly suggests that the petitioner is the parent, as the parent is certainly the one who signs the petition (at least no reports of county clerks attempting to notarize toddlers’ signatures have made it to my attention). And if the petition is “made” by the parent then it would seem to follow that the parent is the petitioner.
Section 62 however also states that no consent is required “from any party other than the petitioner, or in the case of a petitioner who does not have capacity to consent, their legal representative, as a condition of granting the name change.” An infant would seem to count, by legal definition, as a party who does not have capacity to consent; that’s the whole reason they need a legal representative to bring it for them. If so, this language would seem to indicate that the infant is the petitioner. Likewise, Section 63 states that “if the petition be to change the name of an infant…the court shall make an order authorizing the petitioner to assume the name proposed.” Because the infant is the party who is assuming the proposed name, this language appears to explicitly make the infant the petitioner. Similarly, Section 64 states that “the petitioner shall be known by the name which is thereby authorized to be assumed” and that “a name change order…shall be sufficient to change the petitioner’s name.” The McKinney’s sample form petition on point takes this approach, designating the infant as the petitioner (25 West’s McKinney’s Forms Civil Rights Law § 60 Form 2).
It might be argued that these provisions should only be understood to apply only to adult name changes, but that would suggest a sort of oversight, as there are no separate statutes for infant name changes. The legislature, as we have seen, has otherwise made specific reference to infant name changes within the statutory scheme, so the presumption is that they could have similarly done so here, had they intended a different result. Part of the problem, I suspect, stems from an overly exacting reading of the statutes. While this type of linguistic precision is laudable in other contexts, in this instance it can lead to a contradictory result. It’s probably worth noting that section 62 refers to the “applicant” in a name change proceeding, although nothing pertaining to the word “applicant” appears to have any direct bearing on the issue. Section 62 likewise refers to the “individual whose name is proposed to be changed,” which under textualist scrutiny could be read to refer to someone other than the separately mentioned petitioner, or it could simply be language used in its ordinary sense with no particular interpretive implications intended.
Given that each interpretation is plausible, the drafter of a standard form is faced with a dilemma. If one option is chosen it necessarily forecloses the other, but at the end of the day one of the options has to be chosen. One solution might be to require disclosures on the part of both the infant and the parent. Because the statutes refer to a single petitioner however this goes well beyond the statutory mandate. Given that court records are available to the public, it is questionable from a policy perspective to require individuals to disclose sensitive information that isn’t required for the purpose at hand. Another option might be to take a Schrödinger’s petitioner approach, simply using the word “petitioner” on the form, thereby leaving the designation unstated and leaving it up to the patron to make the choice. While this might be a technical solution (and also one that directly mirrors the statutory language) it is also unhelpful, as it simply shifts the decision to the patron (who will then ask the librarian who the petitioner is), who of all parties involved is probably (and naturally enough) the least likely to have any basis for making it.
The state’s CourtHelp website, which is the primary source for the standardized forms, features a DIY program that patrons can use to generate name change petitions, but this runs into the same problem. The program prompts the user to input their information via a series of questions, and at the end populates the generated petition accordingly. As currently set up the program will ask the user if the infant is subject to any of the statutory declarations (the designation rejected by Reine). The administrative option does exist to modify the designations at the county level. Trial court decisions, however, are not binding, and in any given county one judge might rule one way while the judge down the hall might rule to the contrary.
The website also features PDF forms that the user can print out, and creating two standardized forms, one for each option, is at least theoretically possible. But patrons generally cannot know in advance which judge, with their particular interpretation, will hear their case. Such an outcome is foreclosed for example in the Supreme Courts by the Individual Assignment System, where cases are assigned to judges at random. In any event, requiring librarians to know that Judge Smith takes one approach while Judge Jones takes the other would make what is meant to be a uniform statutory procedure a matter of haphazard local practice.
A decision on the matter from an appellate court would be helpful, but these types of cases tend not to get appealed. That leaves what would likely be the best solution, which is to have the legislature amend the statute to designate who the petitioner is in an infant name change proceeding. Changing the law itself might seem like some distance to go, but if judges, McKinney’s editors, and the state’s standardized form drafters cannot arrive at a consensus, then that’s a good indication that the criterion for consensus is wanting. Such a fix would likely only require minimal changes and would have the additional benefit of having the legislature make the definitive determination regarding the underlying policy concerns.