I sometimes get asked by mothers whether they can change their child’s name, without the permission of the father. It’s a fair question; why should the child not have the same name as her/his mother? Especially if the child lives primarily, or sometimes exclusively, with mom?
The law gives rights to parents to raise children without the requirement that parents live together or be married. When mom remarries and/or changes her name, she can ask that her child’s name be changed too.
But does the mother have to get the consent of the father before she changes the child’s name? The answer is, ‘not necessarily’.
If the child’s father has not invoked his rights under the Minnesota Parentage Act, the mother does not have to notify the father if she seeks to have a minor child’s name changed.
The reason for this is that Minnesota law does not automatically recognize a father as a ‘parent’ unless some action has been taken to acknowledge that the father exists. This can be done by having the parents sign a document called a ‘Recognition of Parentage’ and filing that document with the Minnesota Department of Vital Records, or, by having a court declare the father as a parent.
By requiring some affirmative steps to recognize a father’s status as ‘parent’, it prevents unintended circumstances like having a semen donor declared a child’s parent. Minn. Stat. §257.56 subd. 2.
Some of the ways the law can presume a father to be a child’s parent include:
(1) the father and the child’s biological mother married or attempted to marry
under certain circumstances and within certain timeframes relative to the child’s birth,
(2) the father receives the child into his home and holds out the child as his biological child; or
(3) the father and the child’s biological mother execute an acknowledgment or
recognition of paternity
After considering one of these presumptions, and by taking evidence of paternity (blood, genetic test) a court can then declare a father to be a child’s parent, and the law then protects that father’s right to maintain a relationship with his child; including the right to determine his child’s name.
The United States Supreme Court has determined that a father has a liberty interest in the preservation of his relationship with his child. Stanley v. Illinois. But, the Minnesota Supreme Court has determined that to protect that interest the Minnesota Parentage Act must be invoked. Heidbreder v. Carton.
These rights are not automatically conferred, and, if the father has made no effort to utilize the law to declare himself the child’s father, the mother has the right, without notifying the child’s father, to change the child’s name.
Because a father’s rights are not automatically granted, it is important to determine what steps have been made, or, what steps need to be made, for a father to be determined a child’s parent, and, have a say in, among other things, his child’s name.
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.