What’s in a Name? Should a child be able to bear both parent’s names after divorce?

Posted on Dec 5, 2012 by Hofheimer Family Law

When you and your child’s father were happily expecting the birth of your child, you debated whether to name her Brittany or Stephanie. Maybe you considered celebrity-inspired baby names, like “Harlow,” “Apple,” or “Suri.” Or maybe you wanted something a little more earthy or celestial, like “Willow,” “Rain,” “Aurora,” or “Aurelia.” Alternatively, you could hope that, by giving your child a virtuous name, that your child would grow up to be the personal embodiment of that virtue—like “Grace,” “Faith,” and “Hope.” Or maybe not. It is probably more likely that your little Grace will trip down every set of stairs she ever confronts. Regardless, it’s a nice name.

Still, while you were happy, you probably didn’t consider the importance of the child’s last name. In our culture, the generally accepted norm is for the child to receive the surname of the father, whether or not mom and dad are married. In the happy-go-lucky early days, no one often complains. But once things go sour between mom and dad, baby’s last name becomes a big problem.

This problem can be particularly pronounced if the baby daddy’s last name denotes an affiliation with a different ethnic or religious background. Of course, things can often escalate and turn into a full-blown baby name battle. In Virginia, like most states, a petition to change a child’s name must be made by the parent or guardian, and the noncustodial parent must give permission for the name to be formally changed. If he objects to the change, a full hearing can be held. Generally, in order to prevail, the person petitioning for the name change has to show that the welfare of the child is dependent upon the change—a super strict burden of proof that ultimately means that daddy’s name will prevail.

There’s not much you can do to alter the situation, either—aside from having given the child a joint last name, or using your maiden or current last name as a middle name, and that would have been a choice the two of you would have made at the birth of the child. These days, to register a child in school, you have to provide a birth certificate—and schools won’t generally register the child under a different name, and teachers will call the student whatever it says on their classroom roster, thereby ruining your attempt to try to have the child adopt another name by habit.

Fair or not, the law is the law, and in Virginia it would be extremely hard (absent parental permission) to have a minor child’s last name changed.