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In re L.Z.N.

Supreme Court of North Dakota

June 7, 2017

In the Matter of L.Z.N. for Name Change Charlotte Lynn Jackson, Petitioner and Appellee
v.
Shawn David Narvais, Respondent and Appellant

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Richard L. Hagar, Judge.

          Bonnie P. Humphrey, Minot, ND, for petitioner and appellee; submitted on brief.

          Shawn D. Narvais, self-represented, Bismarck, ND, respondent and appellant; submitted on brief.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Shawn Narvais appealed a district court's order granting a petition to change his child's surname. Narvais argues the district court used improper factors in determining the best interest of L.Z.N., he was not provided proper notice of the name change petition, and his due process rights were violated because he was not allowed to appear for the hearing. We affirm.

         I.

         [¶ 2] Charlotte Jackson-Narvais ("Jackson") and Shawn Narvais were married and had one child, L.Z.N., born in 2014. Shortly after L.Z.N.'s birth, Narvais plead guilty to four counts of possession of certain materials prohibited under N.D.C.C. § 12.1-27.2-04.1. The parties divorced in 2015. In June 2016, Jackson filed a petition on behalf of L.Z.N. to change his surname. Jackson argued for the change of L.Z.N.'s name because: (1) she did not want L.Z.N. to carry around the stigma of Narvais's crimes because he shared a last name with his father; (2) she wanted L.Z.N. to have the same last name as his half-sibling, herself, and his maternal grandparents; (3) L.Z.N. wanted to change his last name; and (4) Narvais requested a paternity test to establish his relationship with L.Z.N. and has not been involved with or supported L.Z.N. in any significant way since his incarceration.

         [¶ 3] Narvais opposed the petition. A hearing was set and because Narvais was still incarcerated, the district court allowed him to appear telephonically. Narvais requested an order from the district court requiring the Department of Corrections to allow for his appearance telephonically. The district court denied Narvais's request. Narvais did not appear, nor was he represented by counsel. After hearing testimony and receiving evidence, the district court granted Jackson's petition to change L.Z.N.'s name to L.Z.J.

         [¶ 4] On appeal, Narvais argues: (1) the district court did not provide proper findings to support its decision; (2) he did not receive proper notice as required under N.D.C.C. § 32-28-02(4); and (3) his due process rights were violated because he was unable to appear for the hearing.

         II.

         [¶ 5] We review a district court's decision to grant or deny a name change under N.D.C.C. § 32-28-02 under an abuse of discretion standard. In re Berger ex rel. K.C.F., 2010 ND 28, ¶ 8, 778 N.W.2d 579. However, in situations where the name change is for a minor child, the district court's analysis must incorporate the best interest of the child. Id. On appeal, these findings are subject to the clearly erroneous standard of review. Id.

         A.

         [¶ 6] Narvais argues the district court used improper factors in determining the best interest of L.Z.N. First, Narvais asserts the district court impermissibly admitted his request for a paternity test in deciding the best interest of L.Z.N. because he asked for the test to show the faithfulness of Jackson, not the paternity of L.Z.N. Because Narvais did not appear at the hearing, the document was admitted without objection. Therefore, the district court did not err in including Narvais's request for paternity in its analysis of L.Z.N.'s best interest.

         [¶ 7] Narvais further argues the district court improperly used his requirement to register upon his release from prison against him. He asserts his requirement to register is not harmful to him and therefore, cannot be considered harmful toward his child. Other states have disagreed, instead finding the social stigma associated with sex offenders is relevant in a name change determination. Toepfer v. Meador, 2016 WL 4171452 (Md. Ct. Spec. App. 2016); Cothron v. Hadley, 769 So.2d 1148 (Fla. Dist. Ct. App. 2000). More generally, other states have found the chance of the child being susceptible to harassment or embarrassment because of his or her surname to be a relevant factor. Applicati ...


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