Father’s Rights – Mother’s Rights: Naming the baby

Ever ask mom and dad what your name would have been if they had not chosen the one that you have? Or if you were born the other sex?

Naming a baby can be a fun topic or a stressful one. When mom and dad have different last names, and don’t get along, sometimes the court is called upon to decide a newborn’s name.

Texas Family Code Section 45.004 gives judges the power to change the name of a baby if the judge believes that doing so would be in the child’s best interest.

Either parent may file for the name change, so if mom and dad aren’t getting along at the time of the birth, and mom gives the child a name that dad doesn’t like, dad can file a petition with the court asking it to change the child’s name. On the other hand, if mom and dad are both happy with the name given at birth, and mom later changes her mind, she can file to have the child’s name changed.

Regardless of which parent files, they must give notice to the other parent of the filing. Theoretically, the name of a child cannot be changed without both parents being aware of it.

How a court decides whether it believes that changing the child’s name is in the child’s best interest depends upon the factors that the court considers. Judges are not allowed to prioritize one parent’s name over the other solely based upon whether the name belongs to the mom or dad.

Additionally judges are not allowed to decide solely based upon the tradition of giving children the father’s last name, since doing so would be consider gender biased.

Texas courts make their final decision based upon a case by case determination using factors that they believe are appropriate for a court to consider, such as:

1. Whether the changed name or the original name would best avoid embarrassment, inconvenience, or confusion for the custodial parent;

2. Whether the changed name or original name would best help identify the child with the family unit;

3. The length of time that the child has carried the original name;

4. The degree of community respect associated with the original and changed names;

5. Whether the change will positively or adversely affect the bond between the child and either parent or the parents’ families;

6. The preference, maturity, and age of the child;

7. Parental misconduct, such as support or nonsupport or maintaining or failing to maintain contact with the child;

8. Any delay in requesting or objecting to the name change;

9. Whether the parent seeking the name change is motivated by an attempt to alienate the child from the other parent; and

10. Assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time.

Once the court has made a decision, the chances of getting the matter reversed by an appellate court are not great. So winning at the trial level is crucial.

A related issue to the naming of a baby is that of what can be done to make a parent use the name that the court has given a child, or that the child has been using up to the point that the parents split up.

On that issue, Courts have the power to order a parent “not to permit the child to use any other name while attending school except” the child’s official name.

This power derives from the fact that courts have determined that fathers have a “protectable interest” in the continued use of the name that the child has been using, so courts have the power to prevent moms from deciding that the child will use a new name after divorce or separation, such as that of a step-father.

To discuss any of this with the attorneys at the Beal Law Firm, call us at 817.261.4333 or 214.414. 0418 or write us at lawyers@dfwdivorce.com. Our web address is www.dfwdivorce.com.

Cases referred to in this post:

In re A.W.G., 2011 Tex. App. LEXIS 6854 (Tex. App. Fort Worth Aug. 25, 2011)

In re Guthrie, 45 S.W.3d 719, 2001 Tex. App. LEXIS 2175 (Tex. App. Dallas 2001)

In the Interest of Baird, 610 S.W.2d 252, 1980 Tex. App. LEXIS 4267 (Tex. Civ. App. Fort Worth 1980)

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