Children and Parental Naming Rights

Many states used to operate from the presumption that it is in the child's best interests to retain the biological father's surname. Today, most courts will address the issues of surname and the child's best interest without that prejudice. Most name change petitions for children must be brought separate from a divorce or paternity action. Many name change petitions are brought by men who have parented a child out of wedlock and the mother has already named the child. Neither parent having a paramount interest in the child's name, the court will generally decline a name change as not in the child's best interest without a good reason. The simple request from the biological father will not suffice.

Change of Name vs. No Initial Name

The court may apply a different standard if the name change is requested before the child has been formally named. If there is agreement on the name prior to birth and the mother chooses a different name, the court may choose between the "change of name" standard or the "no initial name" standard, which is a more relaxed set of criteria. The courts will generally conclude that, absent a compelling reason to the contrary, leaving the child's name in place is in the child's best interest. Adoption cases clearly introduce a substantial circumstance to be taken into consideration.

The Child's Best Interest

Many courts generally assume that the name selection by the residential or custodial parent is the choice in the child's best interest. The petitioner must provide evidence that the chosen surname is not in fact in the child's best interest. Considerations before the court include the bonds between parent and child, custodial parent's motives, the length of time that the child has had the current name and the impact of the change on the child's relationship with each parent. The child's preference is taken into account if he or she is of sufficient age to understand the significance of the change. Motives of both the custodial and non-custodial parent are also applicable to the decision making process. The desire to save the child inconvenience or minor embarrassment is not sufficient reason, although it is a valid consideration among several others.

Changing for Protective Purposes

As with most civil actions, notice to both parties of a filed request for action is necessary. In the case of name change, if domestic violence is involved the court may waive the requirement for notice. Taking the protective role one step further, a New York court found that notice of a name change for a mother and her three children need not be provided the father, and that waiver of publication of name changes and sealing of the court record was in order. The father had a history of violence and threats against the mother and children; however, his parental rights had not been terminated. By his abusive behavior and his failure to provide support, it was found that he had effectively abandoned his right to notice.