The Name Game

Recently I was asked who gets to choose the last name of a newborn child?  Typically, this issue comes up when a child is born to parents who are not married.  After the birth, the mother is usually given a form to fill out in the hospital "naming" the child and identifying the mother and father.  This information is used to create the birth certificate for the child.  So what happens when the mother and father each want the child to have their last name; who wins the debate?  If the parents cannot agree, then the mother's choice will likely prevail. 

The common theme in New Jersey in issues relating to children is "the best interest of the child".  Once again, our courts utilize this standard when deciding disputes over a child's name.  There is a strong presumption that the name selected by the custodial parent is in the child's best interest.  Assuming the birthing mother is to have custody of the child, then the presumption is in favor of the mother's choice.  But if the mother was not to have custody; in an adoption case for example, then the adopting (custodial) parents' choice would prevail.   

There are also circumstances where a parent seeks to change a child's last name.  For example, a step-parent decides to adopt their step-child.  Should the child's name automatically change to that of the step-parent?  Or, what if custody changes; will the new custodial parent get to change the child's name without question?  The courts will always look to the best interest of the child.  Evidence that a child has used another parent's name for a period of time, or if the child has a level of comfort with a certain name, will weaken the custodial parent's choice.  Other factors that our courts examine include the length of time that the child used one surname; the identification of the child as a member of a family unit; the potential anxiety or embarrassment a child might experience if their surname is different from the custodial parent and any preference that the child might express, if sufficiently mature to express same.

There is rarely a bright line rule.  Family  matters are always fact sensitive.  What is right for one family or child may not be for another.  You should always consult with an experienced family law attorney for advice specific to your case. 

For more information, or to schedule a consultation I can be reached at 609-601-6600.  For daily posts and information on family law and guardianships, I invite you to like my page on Facebook.

Have a great week!

Stephanie