Some people eat, sleep and chew gum, I do genealogy and write...

Friday, November 4, 2016

Genealogy and the Courts

Here, I am writing about court cases involving genealogy related issues. It has been a considerable time since I wrote about this subject. Generally, I find almost no appeals cases that have involved genealogical issues or companies or whatever. In the United States, we have two general levels of courts: courts of record and courts that are not of record. The courts of record are the state courts of appeal and supreme courts and the Federal District Courts of Appeal and the U.S. Supreme Court. There are a few other courts that also render formal written decisions, but these are the main ones you would normally hear about. All other courts are considered to be "not of record" meaning that they do not render written opinions that are binding or act as res judicata on other courts.

For example, if I file a lawsuit in my local state trial court and the judge or jury decided against me, that decision is not binding on any other court and cannot be used to argue another similar case. But if I appeal the case to my state's court of appeals, the decision of that court is written and published and can be used as an argument (precedent) in a similar lawsuit somewhere else in the country. So when attorneys are arguing about the law, they are using citations to written court decisions.

You can probably guess there are millions of these cases. But we can search them electronically. For example, there is Google Scholar that has a search tool for searching the decisions of the courts of record in the United States.

I have searched to see if the issue of "genealogy" has come up in any of these extensive court cases nationwide. I find the term in 1,150 cases. This is really a vanishingly small number of cases. Most of the cases do not really deal with genealogical issues and just happen to have the word included. But there are a few that are interesting like the one I discussed in a previous post. See "Tompkins vs. 23AndMe, Inc. affirms the enforceability of Terms and Conditions."

I have decided that I will more frequently write about some of the more interesting cases I discover with genealogical themes. The first of these cases is the following: Montandon v. Montandon, 242 Cal. App. 2d 886, 52 Cal. Rptr. 43 (Ct. App. 1966).

This case considered the issue of whether or not a child's surname could be changed after a divorce and when the wife had remarried without involving the child's own request for a change of name. Here, after a divorce, the mother of the two children in question, began using the surname of her new husband for the two children of the previous marriage. The Court held the following:
"From time immemorial it has been the custom for male children to bear the family name of their father throughout life. The paternity of a child cannot be changed. Under the circumstances here presented the Court cannot say that the name of the child should be changed. If, when the boy fully appreciates the circumstances and is capable of selecting a name for himself, he chooses to bear the surname of someone other than his father, he may do so. The Court is convinced that in the meantime it would not contribute to the boy's welfare to permit interference with the usual custom of succession to the paternal surname, or to foster any unnatural barrier between the father and son." 
The respondent's remaining contention is not well taken that the change of familial circumstances of the minor children is justification for the change of their surname. The respondent agreed in the August 1965 stipulation, for consideration, that the said two children would not be legally adopted by her present spouse or future spouse. If she is attempting to rescind that agreement, she has not tendered the consideration she received for its execution, if indeed she were able to rescind the agreement. If she is seeking modification of the custody award, she has not petitioned for the relief she now asserts. (Prouty v. Prouty, supra, 16 Cal.2d 190, 193; Stack v. Stack, 189 Cal. App.2d 357, 369 [11 Cal. Rptr. 177].) 
892*892 [3b] The elasticity of a rule of law allowing a mere custodian whether of minors, adults, or incompetents to interrupt, arbitrarily, the inheritance of a surname is not commensurate with genealogy, history, justice and fairness in the United States. 
Judgment is reversed and the trial court is directed to enter an order consistent with this opinion which order will provide that the minor children, Jean M. Montandon, Jr. and Michael J. Montandon, shall retain their father's surname and be enrolled, registered and known respectively as Jean M. Montandon, Jr. and Michael J. Montandon.
In short, the mother could not change the children's surnames. I thought the discussion of the history of surnames was also interesting. This is what the Court said:
The use of surnames in modern times was initiated in English law by the Normans after the conquest.[1] The surname, since it is not conferred by ceremony, is acquired only by reputation and not by inheritance. (Leigh v. Leigh [1808] 15 Ves. 92, 110, 33 Eng.Rep. 690, 35 Digest 710, 86.) The question of the surname of a minor child after divorce was first considered by Lord Coke in Sir Moyle Finch's Case (1606) 6 Rep. 66a, 77 Eng.Rep. 348, 354, 35 Digest 702, ii: "If a man marries with a woman precontracted and has issue by her, this issue in law and truth bears the surname of his father. But if after the husband and wife be divorced for the precontract, now the issue has lost his surname; for, as it has been said, cognomen majorum est ex sanquine tractum, and now the issue is bastard et nullis filius; and yet because he once had a lawful surname, it is a good ground of reputation subsequent." 
The custom of using the patrilineal surname was conditioned upon the continued support of the child by the father by the Eighteenth Century English courts.
I like the way the judge threw in the Latin terms also. Cognomen majorum est ex sanquine tractum means the ancestor's name is derived from the blood and the term, et nullis filius, means "and no son."

Genealogy is complicated but when you find something like this situation in your ancestry, you just might want to check the court records and see if someone got upset enough to go to court over the issue. 

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