Father's Rights in a Child's Last Name Change
By Beverly Bird
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A father’s rights with respect to his child’s surname usually come down to the opinion of a single judge. States share some uniformity in procedure, and laws do provide a father with an opportunity to object to a change, but whether he'll be successful generally depends on the particulars of his relationship with his child.
Before you can object to your child's name change, you must have legal standing to do so. If you were married to his mother when he was born, the law “presumes” you are his father unless or until someone proves otherwise. If you and his mother weren’t married, you can also create this presumption in some states by putting your name on his birth certificate as his father. In other states, such as Texas, if a mother is not married at the time she gives birth, her child has no legal father, regardless of what the birth certificate says. In these jurisdictions, you would have to legally establish paternity to have any rights or responsibilities, even if your child took your last name. Generally, you can accomplish this with a paternity test. If your child’s mother objects to a paternity test, you can petition the court to order one.
A parent must get the court’s permission to change her child’s surname from the one that appears on his birth certificate. If you are your child’s legal father, she must officially notify you that she’s doing this; she can’t accomplish it behind your back. Most states require that she serve you with a copy of her petition or motion to the court. After you receive this, the law gives you the right to object.
If you receive notice that your child’s mother is trying to change his surname, states typically require that you file a written objection with the court, detailing your reasons for not wanting the change. When the court receives your objection, the name-change process generally can’t go through without a hearing. If you don’t file a written objection, it’s possible that a judge will assume you don’t care and simply sign off on his mother’s request without requiring an appearance in court. Other states always require a court appearance regarding such issues, so in those areas, you could appear at the hearing and voice your objections in person. If you receive notice that your child’s other parent wants to change his name, contact the court or an attorney immediately to learn your options for objecting.
The standards for permitting a child’s name change vary from state to state, but most judges will want to know that your child will benefit in some way from the new name. This puts the burden of proof on your child’s mother to show the court how a different surname will improve your child’s life. If you’ve always been actively involved with your child and you have a close relationship with him, this may be difficult for his mother to prove. If you’ve rarely had contact with him and she wants to change his name to match her name, especially if she’s married or remarried, you might have a harder time getting a judge to side with you. If your child is old enough, judges in some states will consider his opinion.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.