Thursday, May 06, 2010

The Brethren

You might think that ... in a case where a chancellor ordered a child's name changed to the father's over the mother's objection, without conducting a hearing as to whether the child's best interests were served ... the male members of the Mississippi Supreme Court might pay a little attention to the fact that their sole female colleague was thoroughly miffed on the subject.

But with the honorable exception of Justice Dickinson, you would be mistaken. Lamar, J., dissenting:
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. * * *

The majority fails to provide much-needed guidance to the bench and
the bar as to appropriate considerations when faced with these disputes. Despite the
majority’s finding that “it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child” (Maj. Op. ¶8), it later contradicts itself by concluding that:
[a]n on-the-record, best-interest determination before changing a child’s surname to that of the court-determined father in paternity cases is not required pursuant to Section 93-9-9(1) and would serve only to impede the process of “legitimization” of children born out of wedlock.
This is double-speak. Clearly, a best-interest analysis should govern the chancellor’s decision in these disputes and in all matters touching on the welfare of a child. * * *

The majority also finds (without citation to any authority) that the burden of proof in this case rests with the mother (the nonmoving party) to prove that the child’s name should not be changed. * * *

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. Yet without finding any presumption exists, the majority inexplicably refuses to place the burden of proof on the party seeking relief from the court. * * *

I can envision that in many of those cases there may be very legitimate reasons why it would not be in a child’s best interest to have his or her surname changed. Our bench and bar deserve some clear guidance when faced with those situations, and unfortunately they are not getting it today. For the foregoing reasons, I dissent.
She did say "respectfully" in the first paragraph of the opinion, FWIW. [Corrected from earlier misreading.]

What a cockup, as it were. Let's hope for a motion for rehearing, and some time for the majority justices' wives to have a word with them.

... The quasi-omniscient Eugene Volokh picks up on the case, and agrees with Lamar that there's likely an Equal Protection issue, albeit one apparently not preserved by the mother on appeal.


  1. I can see the advantages to the kid for it to have either parent's surname, but from the excerpt provided, Lamar's dissent sound pretty damning as it seems to address the only probably fair aspect that can be had in this case: Process.

  2. Yah, Lamar says she doesn't care about the outcome, but the process was unacceptable.

    Great moniker btw.