Father's Rights on a Child's Last Name Change

By Lindsay Kramer

Updated October 23, 2018

Father and son outdoors

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A father has the right to change a child’s last name to the father's name, but only if he’s the child’s legal father. A legal father and a biological father are not necessarily the same thing. A child’s legal father is the father who has legal parental rights to make decisions on the child’s behalf and spend time with the child. When a married woman gives birth, her husband is automatically the child’s legal father. If a child’s mother is not married when he is born, his father must establish paternity in order to have rights to the child, including the right to change the child’s last name to the father’s name.

Who Has the Legal Right to Name a Child?

Both of a child’s legal parents have the right to petition the court to change the child’s name, but neither can have the child’s name changed without the other parent’s approval or, when the other parent does not approve of the proposed name change, the court’s approval to override the non-petitioning parent’s preference.

How to Change a Minor’s Legal Surname

The process for changing a minor’s legal surname varies from state to state, but it follows the same basic process throughout the United States.

The parent seeking the name change must file a petition with the family court serving his area, which is typically a county circuit court. He must notify the child’s other parent of the proposed name change so she can respond with approval or objection. The court may require the parents to appear at a hearing to each argue their positions, which involves both stating why changing the child’s name or not changing it is in the child’s best interest. If the court agrees that the child’s name should be changed, it issues a name change order that legally changes the child’s name.

Reasons to Grant a Minor’s Name Change

There are many reasons why a parent may seek a name change for his child. These include:

  • Marriage
  • Divorce
  • Adoption
  • Protecting the child from an abuser
  • The child’s preference

A divorced mother who is granted full custody of her child might choose to change her child’s legal surname to hers if she chooses to change it. Or, a parent who escapes from an abusive partner might choose to change the child’s name to create a symbolic boundary between the child and the abuser.

When a parent remarries and her new spouse adopts her child, the child taking the stepfather’s name can be a way for both adults and the child to feel like a family. A child taking the stepfather’s name can be a way for the child to strengthen his bond with his new stepfather. In some cases, this is also where the child’s preference comes into play. In many jurisdictions, the court grants older children the right to accept or reject a proposed name change.

How to Argue a Child’s Best Interest for a Name Change

When a parent petitions to the court to change a child’s last name, she must demonstrate to the court why a name change is in the child’s best interest. The court considers all the factors the petitioning parent states, as well as reasons the other parent provides if the other parent objects to the name change.

Factors related to the child’s best interest include:

  • Consistency, ie., how would a name change disrupt the child’s established lifestyle?
  • The child’s safety
  • The child’s relationship with each parent
  • The child’s emotional and psychological needs

Specific facts about a child’s life play into the court’s determination. Changing a baby’s last name will have a much lesser impact on the child than changing an older child’s last name, which can make it less likely for the court to grant a name change, since the child has spent all of her life with one name.