Ask Me Help Desk - Changing last name

My husband's son's mother moved out of state and in with her parents when she was 3 months pregnant with their son and then never put him on the birth certificate and ended up giving their son her maiden name. She is now married and took her husband's last name and so now all three of the have different last names. My husband has been asking her to agree to change their son's last name to his since generally, that's one of the normal things to go, kids have their father's last names, especially because he (well, we) are and have been a major part of his son's life since she decided to move back to the state. She has refused from the beginning, first stating that even if she got married, she would keep her maiden name (which she didnt), and then because her father does not and supposedly cannot have any sons and so there is no one to carry on the "family name", but we don't feel this is fair as her father is NOT my stepson's father and has only seen him once in the last 2 years. I understand he would have to take it to court, but is there a high possibility that my husband would be allowed to get his son's name changed through the courts even if the mother continues to object?

Rereading what I wrote, I do want to add that we tried to be involved from the beginning but she shut him out of their lives until she finally decided to move to VA from NJ to be with a new boyfriend when their son was 5 months old.

Legally-she has right to put her maiden name as your grandson's last name.

Quote:

Originally Posted by mummydaze

her father does not and supposedly cannot have any sons and so there is no one to carry on the "family name", but we don't feel this is fair as her father is NOT my stepson's father and has only seen him once in the last 2 years.

The argument" there is no one to carry on the "family name", is a solid argument.

Quote:

Originally Posted by mummydaze

I understand he would have to take it to court, but is there a high possibility that my husband would be allowed to get his son's name changed through the courts even if the mother continues to object?

There is no law or clear rules.I have seen many cases where the father's last name is added as a child's middle name or the child's last name is hyphenated.

I have no idea where you are located but let me give you an example from Massachusetts /Massachusetts Department of Revenue/

.. "Will the child's birth certificate include the father's name?
The birth certificate will include the father's name if --
? the parents acknowledge paternity by signing a Voluntary
Acknowledgment of Paternity form in the hospital or later at a city or
town clerks office or at the Registry of Vital Records and Statistics,
or

? a judge establishes paternity in court and orders that the
father's name be included on the birth certificate.

Otherwise, the space for the father's name will be left blank on the child's
birth certificate..."

... "Will the child have the father's last name?
Generally, the mother can decide what the child's name will be. Parents
can choose their child's first and last name together when they fill out the
birth certificate and acknowledge paternity for their child in the hospital.
They will have to go to court if they later decide to change their child's name..."

In Massachusetts... "By law, when parents are not married, the mother
has custody of their child unless a court orders otherwise. A father
who has legally established paternity can ask a court to make a
decision about custody and visitation..."

[ Note, changing the child's last name to the non-custodial Father's
Is the last thing a judge will consider. In Massachusetts, you must
Have physical custody of the child to file for a name change ]

Well the situation was that the mother hooked up with another guy right after she was with my husband, and so no one was certain who the father was. She did not want my husband involved at all in anything so finally he gave up on trying to help her and decided to just wait until the child was born, but even though she was the one pushing him away, she totally flipped when he started dating me. She moved to NJ to be with her parents and have the child, and because he wasn't about to leave VA where we are to go up there to be with her after all she'd put him through, she got angry. Well, when her baby was born, he did look much more like my husband than the other guy and her mother even texted my husband and said, "Say hi to your son". At that point, it was 3 months before we were to get married.

Even though she was certain the baby was my husbands child from how he looked, she still denied him and did not put him on the birth certificate. We have to actually go up to NJ so he can show them the paternity test and court order and get his name put on the birth certificate.

So now the MAIN question is, in Virginia, how likely would it be that he would have it granted if my husband requested in court to have his son's last name changed to his? How about if they both have joint physical and legal custody?

Virginia Code§ 8.01-217. How name of person may be changed.

Any person desiring to change his own name, or that of his child or ward, may apply therefor to the circuit court of the county or city in which the person whose name is to be changed resides, or if no place of abode exists, such person may apply to any circuit court which shall consider such application if it finds that good cause exists therefor under the circumstances alleged. Applications of probationers and incarcerated persons may be accepted if the court finds that good cause exists for such application. An incarcerated person may apply to the circuit court of the county or city in which such person is incarcerated. In case of a minor who has no living parent or guardian, the application may be made by his next friend. In case of a minor who has both parents living, the parent who does not join in the application shall be served with reasonable notice of the application and, should such parent object to the change of name, a hearing shall be held to determine whether the change of name is in the best interest of the minor. If, after application is made on behalf of a minor and an ex parte hearing is held thereon, the court finds by clear and convincing evidence that such notice would present a serious threat to the health and safety of the applicant, the court may waive such notice. Every application shall be under oath and shall include the place of residence of the applicant, the names of both parents, including the maiden name of his mother, the date and place of birth of the applicant, the applicant's felony conviction record, if any, whether the applicant is presently incarcerated or a probationer with any court, and if the applicant has previously changed his name, his former name or names. On any such application and hearing, if such be demanded, the court, shall, unless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others or, in case of a minor, that the change of name is not in the best interest of the minor, order a change of name and the clerk of the court shall spread the order upon the current deed book in his office, index it in both the old and new names, and transmit a certified copy to the State Registrar of Vital Records and the Central Criminal Records Exchange. Transmittal of a copy to the State Registrar of Vital Records and the Central Criminal Records Exchange shall not be required of a person who changed his or her former name by reason of marriage and who makes application to resume a former name pursuant to § 20-121.4. If the applicant shall show cause to believe that in the event his change of name should become a public record, a serious threat to the health or safety of the applicant or his immediate family would exist, the chief judge of the circuit court may waive the requirement that the application be under oath or the court may order the record sealed and direct the clerk not to spread and index any orders entered in the cause, and shall not transmit a certified copy to the State Registrar of Vital Records or the Central Criminal Records Exchange. Upon receipt of such order by the State Registrar of Vital Records, for a person born in this Commonwealth, together with a proper request and payment of required fees, the Registrar shall issue certifications of the amended birth record which do not reveal the former name or names of the applicant unless so ordered by a court of competent jurisdiction. Such certifications shall not be marked "amended" and show the effective date as provided in § 32.1-272. Such order shall set forth the date and place of birth of the person whose name is changed, the full names of his parents, including the maiden name of the mother and, if such person has previously changed his name, his former name or names. (Code 1950, § 8-577.1; 1956, c. 402; 1973, c. 401; 1976, c.115; 1977, cc. 457, 617; 1979, cc. 599, 603, 612; 1980, cc.448, 455; 1981, c. 297; 1983, c. 335; 1985, c. 483; 1991, c.144.)

Quote:

Originally Posted by mummydaze

Even though she was certain the baby was my husbands child from how he looked, she still denied him and did not put him on the birth certificate. We have to actually go up to NJ so he can show them the paternity test and court order and get his name put on the birth certificate.

So now the MAIN question is, in Virginia, how likely would it be that he would have it granted if my husband requested in court to have his son's last name changed to his? How about if they both have joint physical and legal custody?

I am confused which state has jurisdiction-New Jersey or Virginia...

So the MAIN answer is : no one knows. I have just lost my Cristal Ball .
It is not so easy to have Joint physical custody... Do they live in a same city/town/area?

The vital records are in NJ, but the cases have all been handled in VA because the child is 3 1/2 and was moved to VA when he was 5 months old.

The mother has said that if the child wants to have his last name changed to his father's when he's old enough she will do it then, but since then she has said that his name will never be his fathers. THe only reason now that she refuses to do it is because she does not like us and its one more thing she knows we want that she CAN keep from us. Is there no way at all for my husband to request in court for his name to be changed so that their isn't that confusion of him having a completely separate name from both parents?

Quote:

Originally Posted by mummydaze

The mother has said that if the child wants to have his last name changed to his father's when he's old enough she will do it then, but since then she has said that his name will never be his fathers. THe only reason now that she refuses to do it is because she does not like us and its one more thing she knows we want that she CAN keep from us. Is there no way at all for my husband to request in court for his name to be changed so that their isnt that confusion of him having a completely separate name from both parents?

Again-your husband may file a suit against the government,against Coca Cola , he may file for child's last name change.No one can predict what will happen .