Whether a child should use the mother's or father's last name (or surname) can be an emotional issue in separations and divorces, or when a custodial mother remarries and wants a child to use the stepfather's last name. The rights of the father in these disputes depend on a few factors. The laws on this question may vary slightly from state to state, so you should check with the family law court where the child resides to find out about legal requirements and procedures in your case.
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Married and Unmarried Fathers
The biggest factor is whether a father has been married to the mother of the child. If the parents have never been married the mother has the right to name or rename the child as she wishes in most states. For example, an Ohio appellate court has ruled that an unmarried father does not have the right to change the child's last name from the mother's name to his, even though he supported the child. If the parents are married or have been married, the father has the right to be notified of any proposed name change and to either consent or argue that the child should have or retain the father's last name.
If married parents cannot agree on the child's name they will have to go to court to resolve their dispute. This issue may arise during a divorce if the mother receives physical custody of the child and wants to change the surnames of herself and her child to her maiden name. In some cases, such as where the child used a hyphenated form of the mother's and father's last names during the marriage, a father who is seeking custody might want to change the child's last name to his. The divorce court's decision will be part of the divorce order.
Name Change Order
If either custodial parent wants to change a child's last name after the divorce order, she or he will have to go back to court to get an order. This happens most often when a mother changes her own name later and wants the child's last name to match hers or when she remarries and wants the child to use the stepfather's surname. The parent who wants the name change will need to notify the other parent about the proposal and the other parent, usually the father, can either agree to the change or go to a court hearing and argue why the name should not be changed.
Best Interests of the Child
In all disputes about children and child custody, including disputes about children's names, U.S. courts decide the question based on the best interests of the child. There are reasons why it might be in the best interest of a child to have a name changed. If the child is living with a mother or a mother and stepfather who have a different last name, this may be awkward for the child, and he or she may get questions from other children that are embarrassing. The child may want to be part of a family unit and feel left out or different if the mother, stepfather and other siblings all have a different last name. The same is true if a child has a different name from the custodial father's name. A non-custodial father can argue that a child should carry on the name of his father's family and explain why it would not be in the child's best interest to use any last name but his.
A stepfather can only adopt a child if the natural father consents to the adoption and gives up his parental rights over the child, or if a court terminates the father's parental rights. If a father's parental rights have been terminated, he no longer has any rights with regard to the child, including rights about what name the child will use.
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