It is no coincidence that a last name is called the "family name," which goes a long way toward explaining why the last name a child carries is an emotional issue after a divorce. No matter which parent wins primary physical custody, a father may balk at allowing his child to be renamed with that of his ex-spouse or a new stepfather. In California, both parents have a right to make their arguments in court.
Child's Best Interests
In California, neither parent has an absolute right to have a child carry his or her last name. Parents are free to christen their child with the surname of either parent or a hyphenated version of the two names. But, as divorce can signal the beginning of a battle over child custody, child visitation and child support, it also can trigger legal proceedings about the child's last name. Neither parent has the superior edge in such a contest; the court decides the issue by considering the child's best interests.
Read More: How to Contest Child Custody
Name Change Petition
A child's name change may be raised as an issue in the divorce proceedings or afterwards. Either parent or a legal guardian may initiate a request to change a minor child's name; a child cannot bring the motion herself until she reaches majority age. To initiate the procedure after divorce, the parent files a petition asking the court to permit the name change. An order to show cause is filed with the petition. Once these documents are entered into the court files and a hearing date is set, the parent must arrange to have the order to show cause published in a local newspaper.
If one parent files a petition to change the name of a minor child in California, the other parent may signal his approval by adding his signature to the court papers. If he disagrees, he can object to the procedure once he receives notice of the proceeding. To prevent one parent from keeping the other in the dark about the proceeding until a name change has been ordered, state law requires that unless the other parent agrees, he must be served with a copy of the order to show cause. This document specifies the time and place of the court hearing and must be served at least 30 days before the hearing. If the objecting parent resides in California, he must be personally handed a copy of the petition by a third party not involved in the dispute; if he lives out of state, he can be served by registered mail, return receipt requested.
Opposing a Petition
A father who has been served with notice of a pending name change action, and who objects, should file opposition papers with the court and appear at the hearing. Both parents will be given a chance to present their positions to the court and older children also may be allowed to address the court. The most successful arguments will be those based on the best interests of the child because ultimately, that is the issue on which the judge will render the ruling.
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