In re H.C.W. , 123 N.E.3d 1048 ( 2019 )

[Cite as In re H.C.W., 2019-Ohio-757.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
IN THE MATTER OF: :
CHANGE OF NAME OF CASE NO. CA2018-07-069
:
H.C.W. OPINION
: 3/4/2019
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case No. 2018-9073
Joshua R. Langdon, 810 Sycamore Street, Cincinnati, Ohio 45202, for appellant
M. POWELL, J.
{¶ 1} Applicant-appellant, S.L.W., appeals a decision of the Warren County Court of
Common Pleas, Probate Division, denying her application for a name change for her minor
child.
{¶ 2} S.L.W. ("Mother") and K.W. ("Father") are the parents of H.C.W. On April 24,
2018, Mother filed an application to change her child's name from H.C.W., the child's female
birth name, to E.J.W., a male name.1 Mother requested the name change because "the child
picked name to suit gender identity." The application was accompanied by consents from
both Mother and Father. A hearing on the application was held before the probate court on
June 18, 2018. During the hearing, the parents and H.C.W. appeared, and all testified under
1. In this opinion, the child will be referred to as H.W.C., the child's current legal name; however, male pronouns
will be used in accordance with his preferred gender identity.
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oath in a freewheeling discussion with the probate judge.2
{¶ 3} H.C.W. was 15 years old at the time of the hearing and attended a public high
school. H.C.W. expressed to the probate court that he had experienced a "feeling of distress
* * * from as far back as I can remember" which he could not attribute to anything in
particular. But upon learning he could be transgender, "it kind of clicked, and you know * * *
that's what I was upset * * * about. That I wanted to be a boy, but I couldn't." Sometime after
this revelation and approximately a year prior to the hearing, H.C.W. informed his parents.
About this same time, H.C.W. began presenting himself as an adolescent boy by sporting a
male haircut and wearing masculine clothing. H.C.W. also spoke with his school counselor
about the issue. Thereafter, and beginning with the last school year completed prior to the
hearing, teachers at school referred to him by his preferred male name of E.J.W. H.C.W. is
also referred to by his family as E.J.W.
{¶ 4} Upon being informed by H.C.W. that he wanted to be a boy, his parents were
concerned about whether his desire to be a boy "was real" and not "a trend or a fad" or a
"passing phase." The probate court inquired whether H.C.W. had friends in school that were
dealing with gender identity issues, presumably to explore whether H.C.W.'s preference for
the name change was the result of peer pressure or similar influences. H.C.W replied that he
knew of maybe three other students that had gender identity issues, but that they were just
"acquaintances."
{¶ 5} Father noted that before they sent H.C.W. to a therapist, H.C.W. displayed
anxiety and was using anti-depressants. Consequently, H.C.W.'s parents engaged a
therapist to counsel with H.C.W. concerning these various issues. The first therapist
recommended that they see another therapist who specializes in transgender issues. Based
2. Although the probate court's judgment entry reflects that only Mother and the child testified, the transcript of
the hearing reflects that Father appeared and testified.
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upon that recommendation, H.C.W. began counseling with Marcy Marklay at the Lindner
Center. H.C.W. was subsequently diagnosed with gender dysphoria.3
{¶ 6} At the time of the hearing, H.C.W. had completed approximately 20 hour-long
sessions with Marklay. The parents intend to continue H.C.W.'s counseling with Marklay for
as long as recommended. Father provided the probate court with a letter from Marklay
releasing H.C.W. for male hormone therapy.4
{¶ 7} The parents and H.C.W. have had four consultations with Dr. Conard at
Children's Hospital concerning testosterone therapy. Based upon these consultations, the
parents understand that mental health outcomes are better the earlier hormone therapy is
begun. The parents and H.C.W. also understand that testosterone therapy would result in
several physical changes, including facial hair, male Adam's apple, and voice change.
Essentially, testosterone therapy would result in H.C.W. experiencing male puberty.
Although hormone therapy is a lifelong treatment, some of the changes resulting from the
therapy are permanent. As of the date of the hearing, H.C.W. had provided a blood sample
to the hospital to establish his baseline hormone levels. Mother told the probate court that
beginning hormone therapy was not "something that we are treating lightly" and that after "a
lot of discussion about it" the testosterone therapy was scheduled to begin about a month
after the hearing date.
{¶ 8} The probate court confirmed that H.C.W. understood that he had a common
law right to "go by whatever name you want to," and questioned "[w]ho won't agree to that?"
and "what's the need to have it done legally?" H.C.W. replied that while he is referred to as
3. Gender dysphoria is defined as "[a] marked incongruence between one's experienced/expressed gender and
assigned gender[.]" American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
451-453 (5th Ed.2013). The medical condition "is associated with clinically significant distress or impairment in
social, occupational or other important areas of functioning." Id.
4. The record reflects the gist of the Marklay letter, however, the letter itself was not admitted into evidence.
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E.J.W. at school, the school's official records reflect his name as H.C.W. Thus, substitute
teachers refer to him by the female name reflected in his school records, causing him
distress. H.C.W. also stated that other legal documents and his prescriptions refer to him as
H.C.W. Father addressed this issue and advised the probate court that
[E.J.W.] is fifteen (15), soon will be fifteen and a half (15 1/2 ),
and we'll be applying for driver's permits, and, then driver's
license, and, then eventually passports, and, college, and, um,
for this I, I practically wanted the name changed to happen if
that's what he wants. Um, for my insurance uh, again for college
applications, uh, for emergency situations, and, things I wanted
him uh, to be legally known as [E.J.W.]. And, that's why we're
going through this process.
{¶ 9} Based upon their consultations with therapists and Dr. Conard and extensive
discussion among the three of them, the parents were convinced that the name change was
in H.C.W.'s best interest. As Mother stated, "we have been going to therapy for about a year
now, and * * * we've been to Children's Hospital and * * * gone through all of the * * * things
that we feel like we should go through, and, we're convinced that it's in [E.J.W.'s] best
interest to change his name."
{¶ 10} The probate court took the matter under advisement. By judgment entry filed
on June 22, 2018, the probate court denied the name change, finding it was not "reasonable
and proper and in the child's best interest at this time." In so holding, the probate court cited
the best interest factors applicable to name change for minors set forth in In re Willhite, 85
Ohio St.3d 28 (1999), and Bobo v. Jewel, 38 Ohio St. 3d 330 (1988).
{¶ 11} In denying the name change, the probate court focused upon H.C.W.'s youth
and noted that "[a] name change request today by a child could be motivated by short-term
desires or beliefs that may change over the passage of time as the child matures. The Court
recognizes the reality that [H.C.W.'s] brain is still growing and changing and is simply not
ready to make this life-altering decision." The probate court stated that it was not saying "no"
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to the name change but was simply saying "not yet" to give H.C.W. the time to "Age,"
"Develop," and "Mature." The probate court reiterated that the child could exercise his
"common-law right to use the name [E.J.W]" and reapply for a name change upon becoming
an adult.
{¶ 12} Mother now appeals the probate court's denial of the name change application,
raising three assignments of error.
{¶ 13} Assignment of Error No. 1:
{¶ 14} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S
APPLICATION FOR CHANGE OF NAME OF MINOR BECAUSE THE DENIAL WAS
ARBITRARY, UNREASONABLE, UNCONSCIONABLE, AND BASED SOLELY UPON THE
TRANSGENDER STATUS OF APPLICANT'S CHILD.
{¶ 15} "It is universally recognized that a person may adopt any name he may choose
so long as such change is not made for fraudulent purposes." Pierce v. Brushart, 153 Ohio
St. 372, 380 (1950). "In Ohio, names may be changed either by resorting to a judicial
proceeding or by the common-law method of simply adopting a new name, so long as the
change is not made for fraudulent purposes." Bobo, 38 Ohio St.3d at 333.
{¶ 16} The general procedure for a statutory name change is set forth in R.C.
2717.01(A). The statute requires that the applicant have been a resident of the county for at
least a year immediately prior to the filing of the application, and that the application set forth
both the reason for the name change and the requested new name. Publication in a
newspaper of general circulation is required for at least 30 days prior to the hearing on the
application. The probate court may grant the application upon proof of a "reasonable and
proper cause" for the name change.
{¶ 17} R.C. 2717.01(B) governs name changes for minors. The procedure for
changing the name of a minor is the same as that set forth in R.C. 2717.01(A), with the
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exception that the application be filed by the "parents, a legal guardian, or a guardian ad
litem" of the minor, and that the application be accompanied by the minor's parents' consent
to the name change or that notice of the hearing be given to any non-consenting parent. The
standard for deciding whether to permit a name change for a minor pursuant to R.C.
2717.01(B) remains "proof that * * * the facts set forth in the application show reasonable and
proper cause for changing the name of the applicant." R.C. 2717.01(A); In re Willhite, 85
Ohio St. 3d at 30.
{¶ 18} R.C. 2717.01(C) sets forth certain factors disqualifying a person from obtaining
a name change. None of the factors are applicable. Pursuant to R.C. 2717.01(B), Mother
had the right to request the name change for H.C.W., Mother and Father each consented to
the name change, and notice is not otherwise an issue in this case. H.C.W. is therefore
eligible to have his name changed and all procedural requisites of R.C. 2717.01 have been
satisfied. Thus, the sole issue before the probate court concerned whether Mother sought
the name for a "reasonable and proper cause."
{¶ 19} "[W]hen deciding whether to permit a name change for a minor child pursuant
to R.C. 2717.[01], the trial court must consider the best interest of the child in determining
whether reasonable and proper cause has been established." In re Willhite, 85 Ohio St.3d at
32. This necessarily involves a broader inquiry than that applicable to an adult name change.
We will only reverse a probate court's determination of whether a proposed name change is
in a child's best interest if it constitutes an abuse of discretion. In re Crisafi, 104 Ohio App.
3d 577, 581 (8th Dist.1995). An abuse of discretion "connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable."
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 20} In Bobo, the Ohio Supreme Court first recognized several factors courts should
consider in determining whether a name change serves a child's best interest. The supreme
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court revisited the issue in In re Willhite, and with the addition of two factors, reaffirmed the
Bobo factors. Since In re Willhite, the best interest factors are as follows:
[T]he effect of the change on the preservation and development
of the child's relationship with each parent; the identification of
the child as part of a family unit; the length of time that the child
has used a surname; the preference of the child if the child is of
sufficient maturity to express a meaningful preference; whether
the child's surname is different from the surname of the child's
residential parent; the embarrassment, discomfort, or
inconvenience that may result when a child bears a surname
different from the residential parent's; parental failure to maintain
contact with and support of the child; and any other factor
relevant to the child's best interest.
In re Willhite, 85 Ohio St.3d at 32.
{¶ 21} The Bobo/Willhite best interest factors were adopted by the supreme court to
assist courts in "determining the best interest of the child concerning the surname to be used
when parents who have never been married contest a surname." Bobo, 38 Ohio St.3d at
334-335. Bobo and Willhite each involved surname changes for children whose parents
were not married to each other, maintained separate households, and disagreed as to
whether the child's surname name should be changed. In other words, the enumerated
Bobo/Willhite best interest factors applied where family/parental identification issues were
implicated by a name change. This case does not involve family/parental identification
issues and differs from Bobo and Willhite in other significant respects. Specifically, this case
involves a name change to promote the child's gender identity and is sought by an intact
family in which both parents have consented to the name change and agree that it serves the
child's best interest. Thus, many of the enumerated Bobo/Willhite best interest factors are ill-
suited to a name change such as this and other best interest factors must be considered.
{¶ 22} As of this writing, there are no reported Ohio opinions addressing specific and
appropriate best interest factors applicable to gender name changes for transgender minors.
Mother directs our attention to Sacklow v. Betts, 450 N.J.Super. 425, 163 A.3d 367 (2017), in
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which the New Jersey Superior Court considered a name change consistent with a
transgender child's gender identity. The superior court stated
[T]he court finds that the best interest of the child standard
should govern the court's decision and that the following factors
should be considered when determining whether a name change
is in the minor child's best interest, where the minor child is
transgender and wishes to assume a name they believe
corresponds to the gender they identify with: (1) The age of the
child; (2) The length of time the child has used the preferred
name; (3) Any potential anxiety, embarrassment or discomfort
that may result from the child having a name he or she believes
does not match his or her outward appearance and gender
identity; (4) The history of any medical or mental health
counseling the child has received; (5) The name the child is
known by in his or her family, school and community; (6) The
child's preference and motivations for seeking the name change;
(7) Whether both parents consent to the name change, and if
consent is not given, the reason for withholding consent.
Id. at 427.
{¶ 23} We believe the Sacklow factors, with minor modification, are appropriate best
interest factors to be considered in a case such as this, pursuant to the Bobo/Willhite "any
other factor relevant to the child's best interest." Thus, in considering a gender name change
for a transgender child, the factors a court should consider in determining whether the name
change serves the child's best interest, in addition to the relevant, enumerated Bobo/Willhite
factors, shall include (1) the age of the child; (2) the child's motivations regarding the name
change; (3) the length of time the child has used the preferred name; (4) any potential
anxiety, embarrassment, or discomfort that may result from the child having a name he or
she believes does not match his or her outward appearance and gender identity; (5) the
history of any medical or mental health counseling the child and parents have received; (6)
the name the child is known by in his or her family, school, and community; and (7) the
wishes and concerns of the child's parents.
{¶ 24} In denying the name change application, the probate court relied primarily upon
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H.C.W.'s maturity to express a meaningful preference to change his name to E.J.W. The
probate court denied Mother's application based upon its assessment that H.C.W. "is simply
not ready to make this life-altering decision." The probate court incorrectly characterized its
consideration of Mother's application as being "faced with a request from a 15-year-old who
lacks the age, maturity, knowledge, and stability to make this decision." The probate court's
fixation upon H.C.W.'s maturity to express a meaningful preference resulted in its failure to
consider other significant factors relating to H.C.W.'s best interest.
{¶ 25} First, the probate court failed to recognize that it was H.C.W.'s mother, and not
H.C.W., who sought the name change. In doing so, the probate court neglected to consider
the preferences of H.C.W.'s parents and their assessment of H.C.W.'s best interest. In a
plurality opinion, the United States Supreme Court recognized that "so long as a parent
adequately cares for his or her children (i.e., is fit), there will normally be no reason for the
State to inject itself into the private realm of the family to further question the ability of that
parent to make the best decisions concerning the rearing of that parent's children." Troxel v.
Granville, 530 U.S. 57, 68-69, 120 S.Ct. 2054 (2000). The Supreme Court further stated, "if
a fit parent's decision of the kind at issue here becomes subject to judicial review, the court
must accord at least some special weight to the parent's own determination." Id. at 70. In
2005, the Ohio Supreme Court adopted the plurality view expressed in Troxel and held that
"Ohio courts are obligated to afford some special weight to the wishes of parents of minor
children when considering petitions for nonparental visitation." Harrold v. Collier, 107 Ohio
St.3d 44, 2005-Ohio-5334, ¶ 12.
{¶ 26} However, the presumption that fit parents act in the best interest of their
children is not unlimited:
[The] presumption that fit parents act in the best interest of their
children * * * is [not] irrefutable. The trial court's analysis of the
best interests of a child need not end once a parent has
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articulated his or her wishes. By stating in Troxel that a trial court
must accord at least some special weight to the parent's wishes,
the United States Supreme Court plurality did not declare that
factor to be the sole determinant of the child's best interest.
Moreover, nothing in Troxel suggests that a parent's wishes
should be placed before a child's best interest.
Id. at ¶ 44.
{¶ 27} Although Troxel and Collier involved non-parental visitation with a child, those
cases were broadly based upon the fundamental right of parents to make decisions
concerning the care, custody, and control of their children as guaranteed by the Due Process
Clause of the Fourteenth Amendment.5 Just as a court order respecting who may visit with a
child touches upon the fundamental, constitutional right of a parent to the care, custody, and
control of his or her child, so does a court order respecting the name by which the child shall
be known. Thus, H.C.W.'s parents' preference for the name change and their determination
that it serves H.C.W.'s best interest should have been considered by the probate court and
accorded some special weight.
{¶ 28} Instead of giving "some special weight" to H.C.W.'s parents' preferences
regarding the name change, the probate court summarily dismissed them. In its sole
reference to the parents' preferences, the probate court discounted them as simply a "desire
to assuage their child." However, in contrast to "assuaging" H.C.W.'s preference to change
his name, the record plainly shows that the parents engaged a therapist specializing in
transgender issues, kept H.C.W. in therapy for a year, consulted with the therapist, consulted
with Dr. Conard of Children's Hospital concerning testosterone therapy, associated with a
support group, and had extensive discussions among themselves before seeking the name
5. The concurring opinion seeks to distinguish Collier from the instant case on the ground it involved R.C.
3109.051(D)(15), which provides for consideration of parental wishes and concerns, whereas there is no similar
statute here. However, it is clear from Troxel and Collier that the source of a parent's fundamental liberty interest
in the care and custody of the parent's children is the Due Process Clause of the Fourteenth Amendment to the
United States Constitution, not a state's statutes. Troxel and Collier apply when, as in this case, a court
intervenes "into the private realm of the family."
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change. The parents undertook efforts to satisfy themselves that H.C.W.'s feelings about his
gender identity were "real," and based upon all of the foregoing, were satisfied that H.C.W.
did not want the name change as part of a "fad," "trend," or "passing phase." The probate
court erred in failing to consider the parents' assessment of H.C.W.'s best interest and
accord that assessment some special weight when it ruled upon the name change
application.
{¶ 29} The probate court's discussion in the "Decision" section of its judgment entry
does not reveal any consideration of H.C.W.'s mental health counseling and his upcoming
testosterone therapy. The probate court discounted this evidence, speculating that
"[w]hether [H.C.W.] is experiencing Gender Dysphoria or is just not comfortable with her body
is something that only time will reveal. Is [H.C.W.'s] distress brought about by confusion,
peer pressure, or other non-transgender issues - or is it truly a mismatch between her gender
identity and her body?" However, the uncontroverted evidence revealed that H.C.W. has
counseled with his transgender therapist approximately 20 times in hour-long sessions as of
the time of the name change hearing. H.C.W. was diagnosed with gender dysphoria. Based
upon those sessions, H.C.W.'s therapist released H.C.W. for testosterone therapy.
Preliminary testing has been completed and testosterone therapy, which will result in some
permanent physical changes, was scheduled to begin just a few weeks after the hearing.
These actions of mental health and medical professionals legitimize and corroborate
H.C.W.'s parents' assessment that H.C.W.'s feelings about his gender identity are not a
"fad," "trend," or "passing phase," but are "real."
{¶ 30} The probate court further overlooked the practical aspects of H.C.W.'s male
gender identity. In the year preceding the hearing, H.C.W. has presented himself as an
adolescent boy, sporting a male haircut and wearing masculine clothing. H.C.W. has been
known at school and by his family as E.J.W., his preferred male name. H.C.W. experiences
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distress when referred to by his female birth name by persons relying upon his official
records. The timing of the name change is in part motivated by the need to have H.C.W.'s
driver's license, passport, college applications, and similar documents reflect a name
consistent with his male gender identity. Finally, unlike the permanent physical changes
H.C.W. will experience from testosterone therapy, if the probate court's expressed concerns
are borne out, the name change is reversible. All of the foregoing are important
considerations in the determination of whether the name change promotes H.C.W.'s best
interest.
{¶ 31} Considering all of the foregoing, we find that the probate court abused its
discretion by failing to consider appropriate best interest factors before it denied the name
change application.
{¶ 32} Mother's first assignment of error is sustained.
{¶ 33} Assignment of Error No. 2:
{¶ 34} THE TRIAL COURT ERRED IN DENYING APPELLANT'S APPLICATION FOR
CHANGE OF NAME OF MINOR BECAUSE THE DENIAL INFRINGED UPON THE
FOURTEENTH AMENDMENT'S SUBSTANTIVE DUE PROCESS CLAUSE.
{¶ 35} Assignment of Error No. 3:
{¶ 36} THE TRIAL COURT ERRED IN DENYING APPELLANT'S APPLICATION FOR
CHANGE OF NAME OF MINOR BECAUSE THE DENIAL INFRINGED UPON THE FIRST
AMENDMENT'S FREE SPEECH CLAUSE.
{¶ 37} In her second and third assignments of error, Mother argues that the probate
court's denial of the name change application violated the parents' substantive due process
right to the care, custody, and control of their child and violated H.C.W.'s rights under the
First Amendment of the United States Constitution. Based upon our resolution of the first
assignment of error, these assignments of error are rendered moot.
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{¶ 38} We hereby reverse the probate court's denial of the name change application
and remand the matter to the probate court to reconsider the application for change of name
pursuant to the best interest factors recognized herein and based upon the record or after
such further proceedings as the probate court deems necessary.
{¶ 39} Judgment reversed and cause remanded.
RINGLAND and PIPER, JJ., concur.
PIPER, J., concurring separately.
{¶ 40} I concur with the reversal of the probate court's decision. However, I would not
remand, but would instead enter judgment as a matter of law pursuant to App.R. 12(B). I
write separately because the rationale of my colleagues is both unnecessary and
inappropriately applied. We need only examine the record as it exists to determine the
testimony demonstrates the requested name change application established a reasonable
and proper cause and was in the young person's best interest. R.C. 2717.01.
{¶ 41} The majority sua sponte argues that "parental preferences" must be given
"special weight," citing Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334. Substantive
due process is also sua sponte raised and incorporated into the mix by the majority to impose
their rationale upon a probate court name change proceeding, citing Troxel v. Granville, 530
U.S. 57, 120 S.Ct. 2054 (2000).
{¶ 42} Unfortunately, the majority misinterprets and then misapplies Collier. In Collier,
the Ohio Supreme Court analyzed specific statutes that pertain to non-parental visitation
rights. In doing so, the Ohio Supreme court found that, "in fact, special weight is required by
R.C. 3109.051(D)(15), since the statute explicitly identifies the parents' wishes regarding the
requested visitation * * * as a factor that must be considered * * *." (Emphasis added). Id. at
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¶ 43.
{¶ 43} There are no statutes in a minor name change request even remotely similar to
the statutes discussed in Collier. The Collier decision contained an examination of "Ohio's
non-parental-visitation statutes under the strict scrutiny standard." Id. Without any
supportive authority, the majority extends the constitutional principles discussed in that
specific statutory analysis to a probate court's proceedings in a request for a minor's name
change. The majority, in my opinion, blazes unchartered territory in holding "special weight"
must be given to parental preferences when ruling on a request to change a young person's
name. Such mandates are better left to the legislature or the Ohio Supreme Court. While a
parent's concerns and preferences are always factors to be considered, no statute or
authority directs the amount of weight any one factor is to be given.6
{¶ 44} Despite the majority's criticism of the probate court, it is easily observed from
the record that the probate court appropriately undertook its responsibilities to analyze the
circumstances by engaging in dialogue with the applicant and her family. Counsel's brief,
quite incorrectly, suggests the probate court was attempting to supplant what it personally
thought was "wise." The probate court, in fact, was developing the record in an effort to
determine what was "reasonable and proper cause" and in the young person's best interest.
Contrary to the majority's criticism, and counsel's arguments, the probate court's
development of the record only benefitted the applicant in demonstrating a name change was
appropriate to take place.
{¶ 45} Significant information is derived from the probate court's discussion with
Mother, Father, and H.C.W. However, while the probate court correctly engaged in dialogue
and developed the record, the probate court simply erred in its conclusion. Additionally,
6. Since name change proceedings do not require any "fact finding," it is impossible to know what factors were
considered or how much weight was attributed to various factors considered.
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contrary to the majority's opinion, it would be better to draw our conclusions using Ohio
statutory and common law, rather than engaging in a legal analysis which was never raised
by appellant.
{¶ 46} The issue is a simple one: what does the record indicate when analyzing
whether the name change was reasonable and proper and in the best interest of the young
person? The answer lies directly within the facts contained in the record as they relate to the
factors set forth by the Ohio Supreme Court in Bobo v. Jewell, 38 Ohio St.3d 330 (1988),
paragraph two of the syllabus, and later in In re Willhite, 85 Ohio St.3d 28 (1999). As the
Ohio Supreme Court has stated, "although Bobo and Willhite arose in differing context, they
set out general guidelines that apply in any name change determination involving a minor
child." (Emphasis added.) D.W. v. T.L., 134 Ohio St.3d 515, 2012-Ohio-5743, ¶ 17. The
factors set forth by the Ohio Supreme Court that apply to any name change, including the
case sub judice, include:
1) the effect of the change on the preservation and development
of the child's relationship with each parent,
2) the identification of the child as part of a family unit,
3) the length of time that the child has been using a surname,
4) the preference of the child if the child is of sufficient maturity to
express a meaningful preference,
5) whether the child's surname is different from the surname of
the child's residential parent,
6) the embarrassment, discomfort, or inconvenience that may
result when a child bears a surname different from the residential
parent's,
7) parental failure to maintain contact with and support of the
child, and
8) any other factor relevant to the child's best interest.
Bobo at paragraph two of the syllabus.
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{¶ 47} Whether the name change request is for a forename or surname is a difference
of no consequence. Furthermore, common sense reveals it will always be the case that not
all factors are specifically relevant to all circumstances. The majority opinion marginalizes
the application of Bobo/Willhite because the circumstances of those cases were different, yet
the Ohio Supreme Court was aware that different circumstances will arise and thus made the
factors comprehensive and inclusive. Ohio courts would never prohibit a relevant factor from
being considered when determining the best interest of a young person.
{¶ 48} Based on an examination of the record, there were no negative factors
portrayed. With the circumstances comprehensively discussed, when applying the
Bobo/Wilhite factors, there is no choice than to find that the name change was reasonable
and proper. The record indicates that H.C.W. had been using the male name for over a year
before the hearing occurred. Specifically, H.C.W. met with a school counselor to address
using the male name and instituted the name change among teachers and H.C.W.'s peers.
School administration has also honored H.C.W.'s request to use the male name. Thus,
H.C.W. had already shown a commitment to, and comfort with, the name for over a year
before petitioning the court to legalize the name change. H.C.W.'s public presentation for
over a year as a gender different than the one from birth is no small step.
{¶ 49} H.C.W.'s parents spoke of H.C.W.'s history of, and commitment to, living life as
a male and taking the necessary steps to make the transition a mentally and physically
healthy one. H.C.W. participated in over 20 hours of therapy with the adolescent therapist
who specialized in gender dysphoria and saw a physician multiple times to discuss the
physical transformation. Only after this extensive counseling did the therapist give approval
for H.C.W.to begin the physical transformation to parallel H.C.W.'s choice to live as a male.
Beyond consulting experts, a few signs of H.C.W.'s commitment are short hair, wearing male
clothing, and self-identification using a male name.
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{¶ 50} The record also indicates that the steps H.C.W., Mother, and Father have taken
regarding the transitioning process have been by design and methodical. Mother and Father
specifically initiated medical and psychological involvement to identify and diagnose H.C.W.'s
gender dysphoria, and then continued with therapy for over a year to ensure that H.C.W.'s
identification as male was permanent.
{¶ 51} Only then did the family begin preparation for H.C.W.'s physical transformation
from female to male. H.C.W. has already received medical consent to begin the physical
transformation, and Mother and Father have investigated and confirmed the existence of
insurance coverage for necessary procedures. Medical doctors have drawn H.C.W.'s blood
to determine baseline hormone levels, and the family has already scheduled the first
hormone therapy treatment. The family is resolute in their commitment.
{¶ 52} Mother expressed to the court that the name change and transitioning was not
"something that we are treating lightly. There's been a lot of discussion about it." After the
lengthy process, and with comprehension of the complexities involved, H.C.W.'s parents
expressed their full support for H.C.W.'s name change. The record makes it obvious
H.C.W.'s parents have a medical understanding for the direction in which their child is
proceeding.
{¶ 53} H.C.W. has shown maturity regarding gender dysphoria and gender
transitioning and is knowledgeable about the processes associated with the name change
and the reason for such. H.C.W.'s therapist described H.C.W. as "stable," "very engaged,"
and "compliant with therapy."7 H.C.W. showed awareness of the consequences of hormonal
therapy and knowledge that some aspects of hormonal therapy may be "permanent in nature
and are irreversible."
7. The letter is not file stamped, but is included in the case file. During the hearing, Father specifically
references the letter multiple times and asks the probate court if it would "like a copy of the letter." The probate
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{¶ 54} Moreover, the name change will alleviate the embarrassment and discomfort
H.C.W. suffers by not being identified with the male name. H.C.W. expressly confirmed that
when people use the birth name, it "drudg[es]" up anxiety, and the probate court, itself,
recognized that granting the name change "will help resolve some of the feelings of distress
that accompanies" use of H.C.W.'s birth name.
{¶ 55} For example, H.C.W. explained to the court that the name change would allow
the school to permanently change names so that substitute teachers would know what name
to use rather than using the birth name otherwise not publicly used. H.C.W. also addressed
the importance of having legal documents, prescriptions, and other identification reflect the
male name. Father also reiterated the importance of H.C.W.'s male name being used on
H.C.W's future driver's license, passport, college application, in the case of emergency
situations, and in regard to insurance information.
{¶ 56} Mother and Father have supported H.C.W. in every aspect of transitioning
gender and in the name-change process. Mother petitioned the court to legally change the
name and Father signed the petition in support. The record indicates that both parents gave
great consideration to the name-
{¶ 57} change process and, as Mother expressly told the probate court, she and
Father are "convinced that it's in [H.C.W.'s] best interest to change his name."
{¶ 58} The majority generates a holding of "special weight" to impose upon the
probate court on remand when in reality we need only look to the record to ascertain the
judgment that must be entered. However, we should refrain from mandating the amount of
weight any one factor must always receive in every case. When the factual information from
the record is applied to the factors to be considered pursuant to Bobo/Willhite, denying the
requested name change is eliminated as a reasonable option. Therefore, remanding the
court replied, "please." Thus, this exchange indicates that the trial court viewed the letter during the hearing.
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matter only causes the court and parties further inconvenience, which should be avoided.
{¶ 59} I commend the probate court for taking the time to appropriately develop the
record; yet, that same record reveals the probate court simply erred in drawing its conclusion.
For these reasons, which are drawn exclusively from the record, I would enter judgment as a
matter of law in favor of the name change according to App.R. 12(B).
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