When a child is born to a couple that isn’t married, and who presumably have two different last names (surnames), non-marital parents could face the challenges of not only crafting a proper first name for their child, but the daunting decision of whose last name they should give the child, the Mother’s or the Father’s, or both?
Traditionally in America, children receive their Father’s last names, and this probably stems from hundreds of years of tradition in women taking their husband’s last name upon marriage, and the children born from the marriage receive their Father’s last name by default as both parents have the same last name by virtue of marriage. Some other cultures, such as in Latin America the children are given hyphenated last names of both parents.
There are certainly some pros and cons when Mom and Dad have different last names, to giving a child one or the other’s name. Of course following with tradition is important to many people, however, the convenience of the child having the same last name as the primary caretaker and person who takes the child to the doctor and enrolls the child in school is also a factor parents want to consider carefully. Some parents choose to hyphenate the child’s name to represent both parents. While other parents may hinge their naming decision on who has an easier last name. These are all very personal decisions parents must make together, as a child’s name stays with them for a long time, potentially their whole life.
But, what happens when the parents cannot agree on whose last name the child should have? Should the courts intervene and name a child? And, if the court does intervene, what factors should the court consider and what are the limitations on what the court can do with respect to a child’s name?
Indiana statute states that a child born to an unwed mother shall have the mother’s last name.1 However, there is significant caselaw that concerns the court’s intervention of when a child should bear the father’s last name. In a recently decided case in the Indiana Court of Appeals, the Court of Appeals reversed the trial court’s order that stated that the child should continue to bear Mother’s last name.2 The Court of Appeals opined that because Father had been requesting the child’s name changed since almost after birth (paternity was unknown at birth and until a DNA test was completed shortly thereafter, as such the child was given Mother’s name at the hospital), the Father had consistently paid child support, exercised visitation, and sought to be a presence in the Child’s life, therefore, changing the Child’s name to Father’s surname was appropriate to further cement the bond between the noncustodial parent (Father) and the Child, and was in the Child’s best interests.
The Court of Appeals also drew a distinction between the reasons set forth by Father in this case (i.e. he fulfilled his duties to pay child support, exercised parenting time, and sought to be involved in the Child’s life), with the facts of a prior case wherein Father sought to have the Child’s name changed to his simply because it was “noble name” which Father wished to have carried on3. Thus, the bright line test is if the change in surname, or otherwise providing the Child with Father’s surname, is whether it is in the Child’s best interests. And, it is usually in the Child’s best interests to have Father’s surname if the Father is involved in the Child’s life on a regular basis and fulfills his parental duties (financially supporting the Child).
We hope that this blog post has been helpful in understanding some name issues that may arise in paternity suits. Every case is different, and it is recommended that you consult an attorney to determine the best course of action to achieve your goals in your specific case. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.
