When I meet with a new client on a custody case, it’s not uncommon that a question is raised about the children’s last name. It happens much more frequently when people aren’t married and have a child or children before separating. The most common situation when this issue is raised is that the parties are separated at the time of the child’s birth and the mother gives the child her last name; when an action arises to address things such as child support, custody, or visitation, it turns out that both parents want the child to have their last names.
There is no denying that in history it has been much more common for children to carry their father’s name. In fact, at one time in South Carolina the law said the father had a right to have his child bear his surname. This law has since been abolished.
The law now states that while it is recognized a father has an interest in having the child bear his surname, his interest is not greater than the mother’s interest. Instead, both parents have an equal interest in the child bearing their respective surname.
The law holds that when one parent requests that a child’s name be changed, a guardian ad litem (an independent legal advocate to represent the best interest of the child) will be appointed. If the other parent contests the name change, the court will determine what is in the best interest of the child and rule accordingly. The law even specifies the factors that the judge should rely upon, which are as follows:
- The length of time that the child has used the present surname;
- The effect of the change on the preservation and development of the child's relationship with each parent;
- The identification of the child as part of a family unit;
- The wishes of the parents;
- The stated reason for the proposed change;
- The motive of the parents and the possibility that the use of a different name will cause insecurity or a lack of identity;
- The difficulty, harassment, or embarrassment that the child may experience when the child bears a surname different from the custodial parent;
- The preference of the child if the child is of an age and maturity to express a meaningful preference; and
- The degree of community respect associated with the present and proposed surname.
A skilled family law attorney will know to point out each of the factors above and its application to your case in the event that you request a name change. The burden is on the person requesting the name change, so if all things are equal, the person requesting the name change should lose.
Some cases are easier than others. I once represented a woman in a divorce action where she sought to change her children’s names to her maiden name. In this particular case the children had their father’s name. The children had no relationship with their father, nor had they had any real relationship with his family. On the other hand, they had a very good relationship with all of their mother’s immediate and extended family who shared her maiden name (the name she was requesting for them). The two children had not yet started elementary school, and because they were both so young, they were largely unaware of what their legal last name was. Lastly, in determining the degree of community respect associated with the present and proposed surname, the court weighed heavily the fact that the father had been convicted of a heinous crime and was serving life in prison, a crime he committed and for which he was convicted in the very community in which the children lived. The court allowed the name change to mother’s name.
Some cases are not so easy. Our office has defended against fathers requesting a name change. In one case that comes to mind, the parties were never married. The child was school-aged and knew her last name. Additionally, over the years after her parents’ separation and before the action brought to change her name, her mother had another child which also shared the same maiden name as the mother. In this case, the court did not order the name change.
Each case is different, and if you are faced with an issue in the family court and would like the advice of a family court lawyer, please do not hesitate to contact the lawyers of Holland & Usry, PA. We can be reached at 864.582.0416 or toll-free at 888.230.1841.