When a child is born outside of marriage, changing that child’s surname to match that of his or her father’s may not be as easy as a simple petition to the court, as paternity alone is not enough to obtain a name change. Family law ourts have stated that the notion that a child automatically receive his or her father’s surname is based on outdated societal concepts. In recent years, a new standard has developed that favors keeping a child’s name consistent with the name written on a birth certificate instead of changing the name to match the father’s, even when paternity is not disputed. The decision that the courts must make is whether the name change must be in the best interest of the child, not just of the parent, meaning that there must be some evidence that the name change is required for the welfare of the child.
While this might not seem like a difficult standard to meet, it will always be an uphill battle when a name change is desired. Some of the reasons that courts have held were not sufficient to support a name change are, even when paternity was established are:
• A father’s desire for a child to carry the family name;
• A father’s wish that his child share his name;
• A fear that the child will be teased by his classmates if his name differs from his father’s;
• The child’s mother is going to re-marry and change her surname, so the child’s surname will not match either of the parents’ surnames; and
• The use of the mother’s surname would allow the mother to have more control over the child.
Courts have also treated the idea of hyphenating the child’s surname so that it includes both parents’ names in the same fashion. If the name was not hyphenated to include both surnames on the birth certificate, the same requirements must be met before the name can be changed to add the father’s name, even if the mother’s name will not be removed.
The lesson to be learned from this is that if you are expecting a child who will be born outside of a marriage, discuss the issue of the child’s surname with the other parent prior to the child’s arrival, as this will prevent unnecessary litigation in the future. Consulting with and being represented by a knowledgeable family law attorney at this point in time will aid in making this issue as uncomplicated as possible.