December 13, 2013. In this day in age, it is common for an unmarried couple to have a child together. What happens when the couple of this child cannot agree on what the child’s last name will be when he/she arrives? The mother may prefer to give the child her last name, while the father wants his child to have his last name.
Typically, since the mother fills out the birth certificate, she names the child. However, the courts can become involved upon petition by the parent who feels they were wronged by not having a say in the child’s last name.
The courts say that the mother does not have the absolute right to name the child because of custody due to the birth. The mother does not gain the advantage of keeping the child’s name as her last name simply because it was the name listed on the birth certificate. However, the father does not gain an advantage of naming the child his last name because of custom. The court looks at what is in the best interests of the child.
How does a judge determine the best interests of the child? The judge will look at several factors, including: 1) misconduct by one of the parents; 2) failure to support the child; 3) failure to maintain contact with the child; 4) the length of time the surname has been used; and 5) whether the surname is different from that of the custodial parent.
This issue is rarely litigated, so there is not a lot of predictability in this area. The courts look at the facts of each case and determines the most appropriate outcome under the law. For additional information on this and other family law matters, contact Goosmann Law at email@example.com or call 712.226.4000.