In re Cohn

Levy, J.

To the extent that the application seeks readjustment of the rights of custody and visitation, it will be denied at this time, primarily for the reason that the children are still of tender age and require continuation of the existing arrangements. However, the grounds urged for such relief merit further consideration.

The primary criticism urged by petitioner is concerned with respondent’s action in adopting on behalf of the children the surname of her present husband. Although the court does not deem it necessary at this time to impugn the motive, it cannot lend its approval to the use of respondent’s current surname as appropriate for the children of the petitioner. The contention that the selection of a name for these infants is but an incident to her general guardianship, which thus gives her freedom of action in the matter, is wholly unsound. They remain members of the father’s family. That status has been in no wise altered, and, in the circumstances here disclosed, remains paramount to any exercise of discretion in favor of respondent. Hntil the children are themselves competent to make a choice, reasons far more compelling than any here shown would be required to justify departure from the customary use of the paternal surname. In Application of Horn (21 N. Y. S. 2d 453) the infant, who joined in the application, was *1022 sixteen years of age, and there was an absence of any close filial relationship.

Bespondent will accordingly be directed to undo the changes already made and will be restrained from further attempts to change the surname of the infants without further order of the court. The school registration shall not, however, be corrected until the close of the present term. Settle order. ■