Hearing ordered on name change petition

A former college professor convicted of raping a teenage girl won a chance to argue that his sons’ last name should not be changed by their mother.

The Appellate Division of state Supreme Court, Fourth Department, on Friday released a decision that sends the case back to state Supreme Court Justice Mark Montour in Niagara County for a hearing on the issue.

The father, Daniel W. DePerno, was a sports professor at the State University of New York at Cortland in 2010 when he was convicted of second-degree criminal sex act, second-degree rape, and third-degree rape.

DePerno, 46, was accused of having sex with the girl from 2005, when the victim was 13, until 2008. He was sentenced to three years and four months to 10 years in prison. DePerno, who was released from prison in December, is now under parole supervision.

In March 2015, Montour granted the petition from the boys’ mother, Jane F. Niethe, to change their last name to her maiden surname, McCarthy.

Niethe “feared that her sons, who are now old enough to understand the nature of respondent’s crimes, would be ‘humiliated, stigmatized and ridiculed’ as a result of respondent’s background,” the Fourth Department panel wrote in the decision.

“Petitioner further contended that the sons ‘have strongly negative feelings’ about respondent and no longer wish to bear his surname,” the panel wrote.

DePerno, who represented himself in the appeal, challenged “many of the contentions made by petitioner concerning his past conduct and his relationship with his sons,” according to the decision.

“We conclude that Supreme Court erred in summarily granting the petition,” the Fourth Department wrote.

Under New York’s Civil Rights Law, a child’s name can be changed “if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change,” the Fourth Department wrote.

DePerno “raised reasonable objections to the petition,” the appellate panel wrote.

The boys’ new name would not be the same as either parent or their half-sibling, the panel pointed out.

DePerno claims the name change “will have a deleterious effect on his relationship with his sons.”

Niethe’s claim that her sons want to change their name is based on hearsay, and is challenged by DePerno, the Fourth Department wrote.

Montour did not interview the boys so the Fourth Department had no record to resolve that issue.

“In any event, the sons are now of sufficient age and maturity to express their preference for a particular surname, and they have a right to be heard,” the panel wrote.

“Because the record is insufficient to enable us to determine whether the requested change would substantially promote the sons’ interests, we reverse the order and remit the matter to Supreme Court for a hearing on the petition,” the panel concluded.