The issue of changing a minor’s name is a rapidly emerging issue due to divorce, same-sex marriages, and parents using different last names. In the United States, there has been a tradition for centuries and a general assumption that a child born in wedlock will carry their father’s last name or surname. Whether the child has the mother’s last name, the father’s last name or a hyphenated last name, the child’s last name is significant. The child’s last name serves as a link to her family identity and background.
Changing the Last Name
A child’s last name may be changed as part of divorce proceedings. The majority of jurisdictions will permit the minor to change her last name if the record demonstrates that such a change is in the best interest of the child. Some factors that are considered by a trial court with respect to a minor changing her last name include:
A child’s last name may also be changed as a result of an adoption proceeding or through paternity proceedings.
Constitutional Issues Associated with Last Names
Generally, most states permit parents to give their child any last name that they wish. Typically, most parents chose the father’s last name, but the couple may also chose the mother’s last name or a hyphenated version thereof.
Some states limit the parents’ ability to give their child certain last names. If this issue occurs, the couple may challenge the state’s limitation by arguing that the state statute violates their constitutional family protections. The right of a parent to choose her child’s last name is not a fundamental liberty interest. If the state statute limiting the parent’s right to choose a last name is challenged, the state is only required to show a rational basis for its statute limiting the choice of name. If the state cannot show a rational basis, then the parents’ choice of name will be enforced.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.