Courts will not change a child’s last name unless the change promotes the child’s best interest. When I first began practicing law, it was commonplace for the last name of a child born out-of-wedlock to be changed to the last name of the father. The name change would occur when the court determined the identity of the child’s father through a paternity case. In those days, before DNA testing, the finding of paternity was usually by a blood test.
Until 1993, most courts considered that changing the last name of a child to that of the father would, in and of itself, promote the child’s best interest. That all changed in 1993.
Today, when courts are asked to change the child’s last name, the following factors must be used to determine whether such a change promotes the child's best interests:
The child's preference
The change's potential effect on the child's relationship with each parent
The length of time the child has had its present name
The degree of community respect associated with the present and proposed name
The difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed name
Occasionally, both parents will agree to the change of the child’s last name. In such a case, the name will usually be changed by the court without having to present any evidence. However, where no agreement can be reached, the parent seeking to change the child's last name has the burden of proving that the change will further the child's best interests. That person is usually the father.
Current law requires the birth certificate of a child born to an unmarried mother reflect that the child's last name is that of the mother unless both parents have requested otherwise. Even if the parents later marry, the child’s last name is not automatically changed. The only way to effect a change in the child’s last name from the name as it appears on the birth certificate, is by court order.
If you desire to have the name of your child changed to the last name of the father, or if you do not want to have your child’s last name changed, it is important to be prepared to present evidence to the court to support your position.