When a parent leaves a child’s life, that parent can leave a surname behind. This can happen after the parents break up or divorce, or when a parent abandons a child. After the departure, the custodial parent may want to change the child’s surname.
A child’s surname change requires court action. Here’s how it’s done in California.
If both parents consent. If both parents consent to the name change, the court will grant the name change petition. See CCP §1278.5. This is the easiest scenario.
If one parent refuses. If both parents are alive and don’t both consent, the court will decide according to the child’s best interests. Marriage of Douglass (1988) 205 CA3d 1046, 1054. See CCP §1278.5.
Here are some of the factors that a court might consider in determining whether a name change is in a child’s best interests (Marriage of Schiffman (1980) 28 C3d 640, 647):
(1) the length of time that the child has used a particular name,
(2) the nature of the child’s relationships with his or her respective parents,
(3) the effect of any proposed name on those relationships, and
(4) the child’s need to identify with a particular family unit through the use of a common name.
Although the court isn’t necessarily bound by a preexisting agreement of the parents, it could be influenced by one. That’s when it’s useful to think ahead: If you anticipate that a surname change may become an issue after a divorce, you should address it in the marital settlement agreement. Here’s sample language you might use to guide the judge:
The surname of the minor child(ren) of the parties will _ _[continue to/henceforth]_ _ be _ _[surname]_ _.
[Add if appropriate]
Neither party shall seek to change the minor child(ren)’s surname _ _[or given name(s)]_ _, whether formally (through a petition for a name change) or on a de facto basis, without the prior written consent of the other party or a court order.
For guidance on anticipating and handling child custody and visitation issues when drafting a divorce agreement, turn to CEB’s California Marital Settlement and Other Family Law Agreements, chap 6.
Other CEBblog™ posts you may find useful:
- 5 Ways to Deal with the Family Home in Divorce
- Cohabitating Couples Need Clear Agreements
- Thinking Ahead: Pre-Birth Custody and Visitation
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