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macksmom · Jul 29, 2007, 01:02 PM

Hi, I was wondering how to go about changing my 5-year-old daughters last name. Her father and I were never married, so when we had her I chose to give her my last name. I have sole custody of her. I have recently married and have asked my daughter since I will be changing my last name to my husbands, would she want to change her last name as well? She does. I am not wanting to edit her birth certificate in any way, I just want to legally change her last name. So my question is that since I have sole custody of her, and she was given my last name not her biological fathers, can I change her last name without getting permission from her biological father?
THANKS IN ADVANCE FOR YOU HELP! :)

GlindaofOz · Jul 29, 2007, 01:20 PM

I would think that in order to change her last name to your new husband's he would have to legally adopt her which I think involves permission from the biological parent (I may be wrong). I think in some cases if the biological parents has been out of the child's life and attempts have been made to find him I think they can grant it without.

I'm not 100% on this, my knowledge on this is kind of limited.

Edensmimi · Jul 30, 2007, 12:33 PM

I currently raise both of my grandchildren and I have just gotten the oldest one who is 7 last name changed to mine. I had to get the permission of both parents who had to sign court documents allowing me to do so. It was about 200.00 total here in Texas, and of course that was on top of the $14,000.00 it took to managing conservatory custody of them. Good luck and God Bless

angelz921 · Jul 30, 2007, 12:42 PM

I believe but may be wrong on this. That you can change the name to anything you want as long as it is with out intent to fraud. Changing a persons last name doesn't mean they've been adopted. I could change my sons last name to my current husbands name but without the court getting involved with a record of adoption my husband has no legal claim other then Stepfather.

If the father is not in the picture and you have full custody, why not just have your husband legally adopt your daughter?

macksmom · Jul 30, 2007, 01:27 PM

Well my daughter is 5 1/2 and her father just came back into her life about 3 months ago after not seeing her since she was 15 months old. My husband wants to adopt her, and we were going to have her biological fathers rights terminated, but then he came back in the picture, and from what I've read, if the biological father is showing interest there is almost no way the courts will terminate his rights and allow my husband to adopt her.

I finally got ahold of someone today at probate court and they said regardless that my daughter has my last name, not her fathers, and regardless that I have full/sole custody of her, I still need her fathers permission to change her last name... if he refuses to give consent I could try and fight it in court... but I am wondering is it really worth it?

I have read online, like you stated angelz921, that I can change her last name without intent to fraud, but I don't understand how that is done if that wouldn't be her "legal" last name... and would it cause problems down the road?

Edensmimi · Jul 30, 2007, 01:30 PM

He doesn't have to adopt her to change her last name, the bio dad DOES have to allow that to happen though.

GlindaofOz · Jul 30, 2007, 01:33 PM

I think Angelz is talking about doing a legal name change. For that you complete paperwork and file it with the state. However, that would not make her your husband's daughter it would just give her the same last name. What you really want is for your husband to adopt her. If you think that it would be better for her then I say hell yes its worth fighting it in court. And honestly it won't be much of a fight, your daughter is 5 1/2 and the guys been gone all hat time. I can't imagine a court would say no.

angelz921 · Jul 30, 2007, 01:46 PM

You have to prove the father unfit, drugs, felony charges, abuse, whatever. Each state has different guidelines as to what they consider guidelines for it's TPR. Abandonment is usually one of the factor's but as you stated that the father has now come back into her life, that will be difficult to prove. But if you think he will sign his rights away then I would go for it. But Terminating Parental Rights is harder then you think when the father is "reasonably capable" of taking care of your daughter. Believe me I have tried to fight this battle with my own family. If you can't take have your new husband adopt her, go for back child support, supervised visits and whatever else the court deems necessary.

Good luck!!

macksmom · Aug 1, 2007, 01:14 PM

Firstly... thanks so much for all of your help.

Now that her father is back in her life, I am not too worried about having my husband adopt her, her biological father would never sign over rights, so it is very unlikely a court would take away his rights. I mean, my daughter says she has 2 daddys :) Her biological father is in and out (he has 2 other kids by 2 different women) so his time is stretched thin and doesn't see her very much. But my daughter hasn't had a relationship with him in almost 5 years so it is nothing she is really "missing"... my husband is "dad" in her eyes... the way a father should be.

My concern is, before we got married I sat my daughter down and explained that when Josh and I got married I would be changing my last name to his (keep in mind my daughter has MY last name NOT her biological fathers). So I told her I would be changing my last name, and any future children we have would have that last name as well. I asked her did she want to keep the last name she had or change it. And she quickly, and adamently said she wanted to change it.

I mean, my daughter DOES NOT have her bio's last name... she has mine... he would only want to fight it because he wouldn't want her to have another mans last name.

If her biological father tries to "fight" me changing her last name, does anyone know at what age a judge would take into consideration what the child wants? I was willing to let her last name stay the same, if that was what she would have wanted, but she doesn't. I don't want her to feel "different" by having a different last name than me, my husband, and her future siblings :(

GV70 · Aug 1, 2007, 01:48 PM

Originally Posted by macksmom

If her biological father tries to "fight" me changing her last name, does anyone know at what age a judge would take into consideration what the child wants? I was willing to let her last name stay the same, if that was what she would have wanted, but she doesn't. I don't want her to feel "different" by having a different last name than me, my husband, and her future siblings :(

I do not know a judge who is willing to take into consideration chid's wishes... by the way the father has right to file a suit to add his last name as child's one.

GV70 · Aug 1, 2007, 01:58 PM

When you attain your majority you have right to change your name .When the question is about child's last name changing it has to be done with both parents consent.Generally the judges are not willing to change the child's last name to step-parent's one because it is considered as attack against the other parent.

macksmom · Aug 1, 2007, 03:41 PM

I know there are judges that DO take a child's wishes into consideration, I am just not sure if there is an age limit to that (ie they may not take into consideration a 6-year-old wishes, but they will for a 12-year-old). I know of his rights, and that is not a concern because the same measures would have to be taken... changing her name is changing her name regardless of who the petitoner is... "adding" his last name would not be his intention, it would be to stop me from changing it period.

GV70 · Aug 1, 2007, 10:09 PM

If the father says that changing of child last name to his/her step-father's last name will severe and disturb his relations with the child it is more than enough for judges NOT to take a child's wishes into consideration... even the child is 12 y.o. or more...

GV70 · Aug 2, 2007, 03:55 PM

Here are some cases about changing the child's last name.
In re Fetkavich/CAI case No. 45A03-0602-CV-82/-the CAI reversed a trial court that had granted a name change, allowing mother to change her child's last name from her own to that of the child's stepfather.In dicta, the court also noted that statutes provide a presumption in favor of a parent of a minor child who has been making support payments and fulfilling other duties in accordance with a decree and objects to the proposed name change of the child. Mother had argued that the presumption should not apply in this case because the child had never had Father's last name, but the court disagreed, noting that if the court found that Father fulfilled the requirements of the statute, the presumption would apply.
Montgomery v. Wells/ IC of appeals/
The court held that the state paternity statute implicitely gives a trial court jurisdiction to order that a child be given Father's surname. The court noted that, technically, these actions do not involve a name "change" simply because Mother has given the child a name on the birth certificant. "When a parent unilaterally chooses a child's name, the other parent may request the court to examine the name issue--as the mother does not have the absolute right to name the child because of custody due to birth. Consequently, she should gain no advantage from her unilateral act in naming the child." (internal quotations omitted). The court ordered that the 14-month-old child should be given Father's surname as Mother was planning on remarrying and changing her name.

By the way I can cite more than 500 similar cases.