A few years ago, I represented a Mother who wanted to change her child’s last name. She wanted her child to have her last name.
The Mother and the child’s Father were never married. In fact, after the child was born, sadly, the parents parted ways and the child saw very little of the Father. The child grew older and began to identify with Mother’s last name.
Mother wisely forecasted that the child would face tension when squaring the discrepancy in surnames. When Father was approached with the question of changing the child’s name (as the law requires) he bristled; so Mother had to go before a Judge.
At trial both parents presented reasons for and against the name change. Ultimately, the Judge decided that keeping Father’s surname was best for the child, lest the child lose what little relationship remained between Father and Child. Paying homage to a distressed relationship didn’t seem like convincing reason to keep Father’s name.
I came away from the experience wondering whether that Judge could have spent more time thinking about what the law says about changing a child’s name. I hope that child, now a few years older, hasn’t faced hardship identifying with a different last name than Mother’s.
While thinking about this, I thought it made sense to go through what a Judge should be considering when unmarried parents disagree on their child’s name.
The Minnesota Supreme Court declared in a 1981 decision In Re Saxton, that a child’s name can be changed if it’s in the child’s ‘best interests’. 309 N.W.2d 298 (Minn. 1981). And, in deciding what in a child’s best interests, Saxton listed five (5) factors that a Judge must consider:
(1) The length of time the child has borne a given name;
(2) The difficulties, harassment, or embarrassment, that the child may experience from bearing the present or the proposed surname;
(3) The child’s preference;
(4) The effect of the change of the child’s surname on the preservation and the development of the child’s relationship with each parent; and
(5) The degree of community respect associated with the present and the proposed surname.
But the law goes further than this, and requires a Judge to change the child’s name, upon a parent’s request, if the other parent doesn’t object, unless the Judge finds the name change is not in the child’s best interests. See Minn. Stat. 259.11. So, the law requires a Judge to start with a presumption that the child’s name should be changed.
It gets more complicated if the other parent opposes the name change. Then a trial happens, to determine whether ‘clear and compelling’ evidence exists, to show that the ‘substantial welfare’ of the child necessitates the name change. Judges are instructed to exercise “great caution” when granting a name change over a parent’s objection. See Robinson v. Hansel, 223 N.W.2d 138 (Minn. 1974).
By opposing the request for a name change, the estranged parent can significantly steepen the ascent to changing a child’s name. Going from a presumption in favor of a name change, to proving necessity by clear and compelling evidence, is a dramatic shift in a parent’s burden of proof.
When I think about the Mother who wanted to have her child share her surname, I wonder whether the law did her a disservice by it so easy for Father to thwart her efforts, simply by objecting. How does it help the child to force a parent to prove that their ‘substantial welfare’ necessitates a change of name, just because the other parent objects?
If you are considering whether to change your child’s name, consider whether the other parent supports the idea, and if not, consider whether you can meet the steep burden of showing:
- by “clear and compelling” evidence
- that your child’s ‘substantial welfare’
- necessitates the change.
That’s an abnormally high burden of proof to meet in a Family Court proceeding. Be sure to considering seeking legal counsel when considering changing your child’s name.
Meet Tim Simonson
Tim has been practicing for more than twenty (20) years now, He's handled divorce, child support, child custody, third party and grandparent rights, domestic abuse, parenting time, and many other areas of family law. He always enjoys the chance to meet people and see whether he can help find solutions to their legal problems.
Contact Beyer & Simonson
If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.
