Can I change my child’s last name in Virginia?

Posted on Dec 24, 2021 by Katie Carter

The whole ‘filling out the birth certificate’ experience is a weird one. You’re in the hospital, you just had a baby, you are recovering from a major physical ordeal and may even still have been on pain medication at that point. The nurses have come in for a bajillion and one different things and even, if your experience was like mine, a specific person comes in to request that you prepay a certain amount of your hospital stay even though they’re not able to provide you with an itemized bill. (Yeah – that happened. Twice.)

So, then, they come in asking all sorts of questions about the baby’s name and parents. It doesn’t feel that official; after all, you’re probably filling it in as you lie there in bed, under the influence of whatever painkillers. Sure, it’s an official form and all that, but it just doesn’t feel that momentous.

In many ways, though, it is.

A lot of what will happen will depend on your relationship with the child’s father. If you’re married to him, he’ll likely be in the room when the baby is born and participate in filling out the birth certificate information. You’ll likely put the name you agreed upon, first and last, and add in both of your information. (It asks for a LOT of information about you, your parents, and so on.)

If you and your child’s father are not married, there are more options. You may, regardless of whether you’re still together, allow him to be in the room while you bring his child into the world. You may, however, choose to exclude him. It’s entirely up to you, as the patient, and you should not feel pressured to allow anyone in the birthing room (or operating room) who you’d prefer not be present. You also don’t have to admit him, or admit him for an extended period, after you give birth.

So, depending on your relationship with the child’s father, he may or may not be present when the nurses come in requesting that you fill out the birth certificate information. If he’s there, or if you’re married, you’ll likely fill out the form predictably – with the name you’ve chosen, and probably his last name.
If he’s not there, and you’re not together, you may choose to go a bit rogue. You may choose your own first name, or list your last name – instead of his – on the paperwork. You may list him as the father – or leave that field blank. There’s not very much he’ll be able to do about it, and he likely won’t know about it until you receive the fully executed birth certificate back in the mail 4-8 weeks or so after the birth.

So, what happens then?

Well, if you use his name and list him as the father, it’s all pretty straightforward. He could challenge paternity, if he was concerned, but he wouldn’t have to. If you had a custody and visitation issue, or were pursuing a divorce, you’d follow regular channels.

If you don’t use his name or list him as the father, things are a little bit different. If you take him to court for custody, visitation, and/or child support, you’ll have to establish paternity first. This isn’t for any other reason than that no father was listed at the time that the birth certificate was recorded. Once paternity is established, you can use the courts for custody, visitation, and child support proceedings.

Once paternity is established – whether because dad was already listed on the birth certificate or because paternity proceedings were instituted – the name change process and standards are the same.

As far as the name change is concerned, the name on the birth certificate pretty powerful. In order to change it – whether you’re the one who wants to change it or he wants to change it – you’ll use a ‘best interests of the child’ argument, but you’ll also have to meet an additional criteria in that the child will need to suffer ‘substantial detriment’ because of the last name.

As you can probably imagine, ‘substantial detriment’ is a hard standard to meet.

To give you an example, another attorney in the office had a case where a child had a dad’s name, and the dad was in prison. It was for a particularly heinous offense, and the child lived in a small town where everyone knew everyone. The child had teachers and other kids who had made the connection, and asked whether the child was related to the dad in jail.

The court found that even this – which was really distressing to the child – was not enough to show a ‘substantial detriment’.

I don’t know – off hand – of any cases where a name change was successful, but I can think of several (all of the ones that I know of, in fact) where it was unsuccessful.

In a lot of ways, the birth certificate moment is a ‘gotcha’ moment. Even if the situation changes later, it’s going to be REALLY hard to undo the child’s name.
It’s not impossible, but it’s probably improbable. It’s a good idea to talk to an attorney one on one about your case, if you have specific questions, or want to see whether you have additional options. For more information, or to schedule an appointment with an attorney to discuss your unique case, give our office a call at 757-425-5200.