A Rutgers University study in 2002 found that, in the United States, in about 97% of cases, married couples with children gave their children the father’s last name. While many married couples simply do not question that Wife will assume her Husband’s name upon marriage and that the children born of the marriage will also share Husband’s last name, some married couples opt to use either Wife’s last name for the children or to use a name for the children that is a combination of Husband’s and Wife’s last names. In most cases involving married couples, there is agreement, perhaps based upon a perceived or recognized social convention involving naming of offspring. But what if the parents do not agree? Or what if a child is born to an unmarried couple? How in those situations is the child’s last name determined?
Statutorily, if the mother of a child was married at either the time of conception of the child or at the time of the child’s birth, then the child shall have her husband’s last name entered as the child’s last name on the birth certificate. As an exception to this rule, the parties may agree to give the child a last name that is not the husband’s last name. There is another exception to this rule – that is if a paternity test has proven that husband is not the father. In either of those two situations, husband and wife may give the child any last name they so choose. That means they can give the child a last name that is different from both of their last names should they chose to do so.
If a woman is unmarried from the time of conception through the time of the child’s birth, then the child will bear the mother’s last name. If the putative father later legitimates the child, the legitimation statutes provide that upon legitimation the father’s last name is added to the birth certificate but that the child’s last name as originally set out on the birth certificate does not change unless the mother and father agree to change the last name or unless a court orders a change in last name in the best interests of the child.
There are also situations in which the child may be given one last name at birth but then a parent wishes to change the child’s last name in the future. For example, there are cases in which a child is given father’s last name at birth but then later the father abandons the child or the father’s parental rights are terminated. There are also situations in which mother and father together may decide that the child should have a different name. How does that work? Outside of the birth registration and legitimation processes, North Carolina doe have statutes that allow anyone to petition the court for a change in name (this type of name change is not limited to a change in last name – North Carolina allows a person to change any or all parts of their name). In the case of a minor child, an application to change the name of the child may be filed by the child’s parent or parents. Generally, this application may not be filed without the consent of both parents of the child unless one of the following exceptions applies:
(1) the child is at least 16 years old and the child files to change her name and the parent with custody agrees and the parent without custody has abandoned the child;
(2) a parent may apply to change the child’s name if the other parent has abandoned the child;
(3) one parent applies to change the child’s name and the other parent has been convicted of certain types of child abuse against the child.
So, while there are procedures that do allow a parent or parents to change a child’s last name, the process can be difficult and time-consuming unless there is agreement by all necessary parties. The better course of action is to decide before the child is born what last name the child will bear because it is simpler for the child to keep his or her original last name that it is for a name to be changed later.
If you are in a situation in which you need to change your child’s last name, the attorneys at Collins Family & Elder Law Group can help you navigate the procedural and factual hurdles necessary to get this done.
