STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANCY ANN BLACKWELL, on behalf )

of minor child, NANETTE LEE ) JOHNSON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-321

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, P. Michael Ruff, held a public hearing in the above- styled cause on April 23, 1982, in Tampa, Florida.

APPEARANCES

For Petitioner: Thomas R. Fay, Esquire

3000 First Florida Tower Tampa, Florida 33602

For Respondent: Janice Sorter, Esquire

Department of Health and Rehabilitative Services 4000 West Buffalo Avenue

Tampa, Florida 33614

For Intervenor: Anthony P. Pireto, Esquire

601 Twiggs Street, Suite 203

Tampa, Florida 33602

The Petitioner is Nancy Ann Blackwell, the mother of Nanette Lee Johnson, who is requesting an Administrative Hearing to contest the Respondent's Notice of Intent to Deny her request that Nanette Lee Johnson's birth certificate be amended so as to reinstate Nanette Lee Johnson's original name of "Milwee Nanette Johnson," the name she was given shortly after birth and which was recorded on her original birth certificate.

The Petitioner presented one witness and three exhibits, all of which were admitted into evidence. The Respondent and Intervenor each presented two witnesses, Archie Lee Johnson, the father of the subject child, as well as Everett Williams, the Director of the State Office of Vital Statistics. Upon appropriate motion and by agreement of the parties, Archie Lee Johnson was permitted to intervene in opposition to the petition. Mr. Johnson is the father of the minor child now named Nanette Lee Johnson. Subsequent to the hearing, the parties elected to file proposed Recommended Orders and in

conjunction therewith waived the thirty day requirement for rendition of the Recommended Order pursuant to Rule 28-5.402, Florida Administrative Code.

The issue to be resolved is whether the Respondent, the Department of Health and Rehabilitative Services, acted within its authority in changing the recorded name of the minor child from "Milwee Nanette Johnson" to "Nanette Lee Johnson" upon a request by only one parent and, corollarily, whether that change (pursuant to Section 382.49, Florida Statutes) was validly predicated on a mistake or error made in the execution of the original birth certificate.

FINDINGS OF FACT

1. The Petitioner's daughter, Nanette Lee Johnson, was born December 1, 1971. At or near the time of birth she was named Milwee Nanette Johnson by her mother, Nancy Ann Johnson, now known as Nancy Ann Blackwell. At the time of the child's birth, her parents were separated and subsequently their marriage was dissolved. Because of the separation, Mr. Johnson was not present when the child was born and did not participate in the decision to name the child Milwee Nanette Johnson. The child was given this name in honor of her maternal grandmother, Milwee Hodge Maye. Mr. Johnson apparently simply does not care for that name, and took steps to unilaterally change the name upon the child's entry into public school, presumably when she was six years of age. The Petitioner's child was still named Milwee Nanette Johnson at the time the dissolution of marriage order was entered, March 13, 1972. In that order Mrs. Blackwell (the Petitioner herein) was awarded custody of all four of the couple's minor children. Subsequent to the dissolution, she apparently suffered some serious emotional problems with the result that custody of the children was awarded to their father, Archie Johnson. The child still, however, has a close relationship with her mother and visits her every other weekend. Mrs. Blackwell purposely named the child Milwee Nanette Johnson in honor of the child's grandmother and not as the result of a mistake.

   
   

2. In 1976, before Nanette became seven years of age, Archie Lee Johnson, her father, decided to change her name before she started school so that the permanent school records would reflect the name he chose, Nanette Lee Johnson. Accordingly, he contacted the Bureau of Vital Statistics of the Respondent and requested a change of the name on the basis that a "mistake" had been recorded on the original birth certificate, filing the required supportive affidavit. The name change was thus granted by the Respondent Bureau as the correction of an alleged mistake and the child has been known as Nanette Lee Johnson since that time with that name being reflected on all school records. Her father never consulted her mother when he effected the name change for the child. In fact, Mrs. Blackwell did not learn of Archie Johnson's change of her child's name until sometime in 1980, thereupon petitioning the Respondent to have her original name reinstated on the birth certificate.

   
   

3. Mr. Everett Williams testified for the Respondent and Intervenor. He is the Director of the State Office of Vital Statistics and State Registrar. He has held that position since June of 1947. He has been instrumental in setting policies for his Bureau, including drafting Rule 10D-49, Florida Administrative Code, which is germane to this proceeding. He and his Bureau have adopted the policy, in interpretation of the rule and Section 382.49, that given names may be changed or "corrected" when a child is less than seven years of age with a parent's affidavit. An affidavit from both parents is not required by the Respondent. After a child reaches age seven more proof is required before a child's name will be changed. This might consist of grade school records showing the name the parent or parents wish the child to have and which is

   entered on a school record or some other such supporting documentation. The Respondent takes the position, through the testimony of Mr. Williams, that a mere change of a parent's mind before the child reaches age seven constitutes a "correction which they will honor and alter the original birth certificate accordingly. Mr. Williams acknowledged that his Bureau has always interpreted "correction" loosely to include a change in the parent's mind, but it also follows a policy of so changing a birth certificate one time, even if one parent was shown to disagree with the first alteration and even if, as here, the change was effected without her knowledge. The Respondent thus refuses to reinstate the recording of the child's original name, still contending that it had merely corrected a "mistake" on the face of the certificate, even after ample notice of the mother's protest.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes.

   
   

   Section 382.49, Florida Statutes, provides that:

   1. The Department of Health and Rehabilitative Services, by and through the State Registrar, is hereby authorized, empowered and directed to correct any error of a general nature pertaining to date of birth, sex of child, or other information necessary to the issuance of birth certificates and to correct any error of a clerical nature, such as mistakes in spelling of names of child, names of towns or cities in which child was born or doctor or midwife or other person attending the birth of

      said child.

   2. The affidavit of either parent of said child shall be sufficient evidence for the correction of any error mentioned in subsection (1) of this section.

   3. The State registrar shall make no rule superseding this section.

      
      

5. Rule 10D-49.16(1), Florida Administrative Code, provides as follows:

   
   

   Correction of the following items on a birth certificate requires one supporting document; the given name of a child (other than misspelling) if seven years of age or older; surname of a child born out of wedlock if seven years of age or older. (emphasis supplied)

   
   

6. Rule 10D-15 similarily provides that for major corrections to birth certificates for persons under 21 years of age, then the documents used in support of the proposed correction must be taken from records established prior to the person's seventh birthday who is the subject of the correction.

7. The issue here is whether the change in the birth certificate occuring before Nanette Johnson was seven years old was a "correction" of that birth record or an actual change of mind concerning the given name. The whole import of the two above-referenced rules is the correction of mistakes in the birth record and not one parent, to change the given name of a child, which was properly constituted and recorded to begin with. Here Mr. Johnson filed an affidavit in support of the change of this child's name and since she was under seven years of age that appears, on its face, to comply with the rule. The problem here is that the preponderance of the evidence in this record indicates there never was a mistake made to begin with, that the parent with custody of the child at the time of naming, which was the Petitioner, the child's mother, properly gave and had recorded her given name "Milwee Nanette Johnson." That naming was clearly not a mistake and clearly not mistakenly recorded since the uncontradicted evidence in the record reveals that she was named thusly to honor her grandmother. Thus, the department was in error in correcting the name of the child on the affidavit of the father when it was not shown that the change was for the purpose of a correction, but merely was a change in the desired given name for the child by one of two available parents. It is understandable that the Respondent would rely on the fact of the affidavit of the father requesting the name change and assume possibly that there was a mistake in the name given at birth or shortly after birth; however, it learned as far back as 1980 that indeed no mistake had been made, but rather one parent was attempting to reverse the name choice of the parent who had custody of the child and the clear right to choose its name at the time of birth in the other parent's absence. The father could have advanced his opinions as to the appropriate given name for the child at that time but chose not to do so. The father has, rather, waited until Nanette Johnson started school, changed her name and caused her to begin accumulating school records in the new name, acquiring that identity with her friends. Thus, a dispute at this late date as to her appropriate given name may cause her substantial discomfort and embarrassment which could have been avoided had the father been candid with her mother and disclosed his intention to give her a different name and allowed some discussion of the issue between the two of them. He chose, however, to assert that a "mistake" had been made in the original record, unilaterally changed the child's name and then concealed the change from the Petitioner for approximately four years.

   
   

8. In short, the preponderance of the evidence in the record and the above authority reveals that the original name, Milwee Nanette Johnson, was given the child appropriately and in a legal fashion shortly after she was born, even though she was named by just one parent, since there is no prohibition against that in the statutes and rule. The change effected by her father in 1976, however, is improperly constituted since his and the department's position was that they were "correcting a mistake" in her birth certificate and relied on the above-cited statute and rules, when the preponderance of the evidence in the record clearly reveals there was no mistake in the original recording of her given name, rather, there was a change in the desires of one parent as to what her given name should be. The alteration of the record was done without consulting the other parent. Moreover, the department knew as far back as 1980 that the original given name had not been mistakenly entered and therefore should have "corrected its own mistake" in changing the name at the father's sole behest when the information supplied to the department by that time (by the mother) should have revealed to it that no original mistake had been made. The authority cited above was intended merely to allow corrections of mechanical errors in birth records, not to resolve disputes between parents regarding children's given names, which disputes lie in the equity jurisdiction of the Circuit Courts, with attendant requirements of notice and due process for the

   opposing parent. In that regard, it is noted, parenthetically, that society and the law favors preservation of the parental relationships and the avoidance of possible adverse effects on that relationship caused by changing of names of minor children. Lazow v. Lazow, 147 So.2d 12 (1962, Fla. App. Dis. 3)

   
   

9. Accordingly, it is concluded that since no mistake in the original naming of the child has been demonstrated in this record which would trigger the use of the above authority in allowing one parent to submit an affidavit in successful support of a change of a given name for his child, the Respondent should now correct its record and reenter the name of "Milwee Nanette Johnson" as the child's legal name on the birth certificate (regardless of how she chooses to be called). If the parents persist in failing to agree on her given name, then the appropriate action and forum to resolve that dispute would be a name change proceeding in the Circuit Court.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED:

The the Department of Health and Rehabilitative Services, Bureau of Vital Statistics, change its records, deleting the name of "Nanette Lee Johnson" and substituting therefor that child's original name of "Milwee Nanette Johnson" and to so maintain the record of the child's given name unless a Court of competent jurisdiction orders otherwise.

DONE and ORDERED this 12th day of October, 1982, in Tallahassee, Florida

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1982.

COPIES FURNISHED:

Thomas R. Fay, Esquire 3000 First Florida Tower Tampa, Florida 33602

Janice Sorter, Esquire Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

Anthony P. Pireto, Esquire 601 Twiggs Street, Suite 203

Tampa, Florida 33602

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-000321

Orders for Case No: 81-000321