In many of our Georgia custody, legitimation, and paternity cases our law firm is often asked a version of the following.
“Can I change my child’s last name?” or “Can the other parent change my child’s last name?” or “How do I change my child’s last name?” This article addresses these and other similar questions.
In many cultures, a child’s surname or last name has a significant symbolic value attached to it. A surname serves to mark our heritage, our religion, and, perhaps most importantly, our family origins. On this note, when a child is born in Georgia, if the child’s paternity is known, the father’s surname is given to the child.
The practice of giving a child the surname of his or her father predates our nation and stretches back centuries; however, this rule is not absolute, given situations in which a child is exclusively raised by their mother, or the father is not involved in the child’s life.
In these cases, the custodial parent may wish to change the child’s surname. As such, Georgia law recognizes three scenarios under which a child’s surname may be changed, dependent on whether the child was born in or out of wedlock, or if the name change is being exercised by consent of one of the parents.
Children Born Out of Wedlock
OCGA § 19-7-22(b) provides that “a father of a child born out of wedlock may petition the court for legitimation of the child and may include a request to change the child’s name as part of the legitimation petition.” Name changes for children born out of wedlock are evaluated by the court in light of whether the name change is in his or her best interests. Under these circumstances, the Court “has broad discretion in deciding whether to grant a request to change the name of a child.” Palmer v. Pinkston
As such, changing the surname of a child born out of wedlock ultimately hinges on the “best interests of the child.” However, what constitutes the best interests of the child remains contextual and thus not clearly defined in either the statutory or case law.
Under this scenario, in the Palmer case, the court noted that the child had lived with the mother and used her last name for two years before the legitimation. The court also cited to authority the effect the proposed surname change would have on the child’s happiness and emotional well-being.
Children Born In Wedlock
For children born in wedlock, a parent may present a petition to the Superior Court of the county of the child’s residence requesting a name change. The Georgia name change statute, O.C.G.A. § 19-12-1(c), sets forth the following requirements when seeking to change a child’s last name:
“If the petition seeks to change the name of a minor child, the written consent of his parent or parents if they are living and have not abandoned the child, or the written consent of the child’s guardian if both parents are dead or have abandoned the child, shall be filed with the petition, except that the written consent of a parent shall not be required if the parent has not contributed to the support of the child for a continuous period of five years or more immediately preceding the filing of the petition.”
If either parent objects to the request to change the child’s name under this statute, then the court is not authorized to change the child’s name. The provision requiring mutual consent may be perceived as an avenue for obstruction; however, Georgia courts have traditionally protected the surname rights of even the most detached parent.
One of the more difficult circumstances litigants find in the consent requirement is that a recalcitrant parent may be able to block efforts to a name change, even if there is a legitimate need to do so. These circumstances often arise when a child’s parent is incarcerated, whereby the Georgia law unequivocally will not allow a unilateral name change even if it could be construed as being in the child’s best interests.
Name Change by Consent
Other than using the statutory method discussed above in a contested name change, a petition to change a child’s surname may be presented to the court requesting the court evaluate whether the change will serve the child’s best interests. According to O.C.G.A. § 19-12-1(a), to initiate this request the parent may present a petition to the superior court of the county of the child’s residence, outlining the reasons why the change is needed.
Georgia law, much like in other states, recognizes the symbolic importance of a child’s surname. Accordingly, Georgia statutory and case law provides rigorous procedures attached to changing a child’s surname. As such, a party who wishes to unilaterally change a child’s surname will likely fail, given that the current law places such a high value on the role of consent in this process.