When the relationship between parents has broken down, married or unmarried, who chooses the child’s name? And can a child’s last name be changed afterward?

More than 40% of children are born to unmarried parents in the United States. Sometimes the parents are in a committed relationship, other times the relationship has broken down and the parents are no longer together.

In one recent case we worked on, a couple was married when the Wife decided she no longer wanted to be married. The couple had previously decided to name their son Joseph Benjamin Collins. (Wife intended to change her name to Collins but was still using her maiden name of Birch). She was five months pregnant at the time she filed for divorce. She also served her husband with an Order of Protection. She cut off all contact and moved out of state. The Father didn’t know when his Wife had given birth, let alone the name she picked.

The Mother named the child Gordon Joseph Birch. Gordon was the name of her Father. She and her family referred to the baby as Joseph. The Father had almost no contact with his son or the mother until the actual divorce. By that time, the baby was 9 months old.

One of the things Father requested was that the court change the baby’s name to the name the couple had agreed upon, or in the alternative, hyphenate the baby’s name so that he had both the last name of the Mother and the Father.

In the past, children were given the last name of their Father’s. Long ago, the Father had a right, a protectable interest, in giving legitimate children his surname. Likewise, children born to unmarried parents were usually given a Mother’s surname. Eventually courts agreed this was a bad policy and instead decided that when two parents disagreed over the name of their child or children the court would decide to change a child’s name only if it is in “the best interest of the child.”

To determine if changing a baby’s name is in a child’s interest, the court will look at:
  1. Does the child have a preference as to what his or her name should be?
  2. The effect of the change on the preservation and development of the child’s relationship with each parent.
  3. The length of time a child has had his or her name.
  4. The difficulties, harassment or embarrassment that the child may experience from bearing the present or proposed name.
  5. The motive of the parent and the possibility that the use of a different name will cause insecurity or lack of identity.

Essentially, neither the mother nor the father have a trump card in determining the name of a child. You as the Mother or Father don’t have the “right” for the child to bear your name and the facts matter. In our case, the one discussed above, the Judge changed the child’s name to Joseph Birch-Collins. The Father, our client, was very happy to have his son’s name not be his estranged Father in Laws name “Gordon” and was happy to share the baby’s last name with his ex-wife. As you can see, it’s a very fact specific question. If the child was 12 and the Father had just come into the picture, it’s doubtful the court would change the child’s name. Married or unmarried, the question is the same, is it in the best interest of your child to change his or her name. Make sure to lay out any facts that relate to the five factors discussed above.

If the judge does change a child’s name, he or she will need to Order that a new birth certificate be issued. You can get an updated birth certificate from the Office of Vital Records, Department of Health Services, 181 W Adams St Phoenix, AZ 85007, (602) 346-1300, and submit an application and a certified copy of the court’s order.