Wanting to change your own surname after the divorce is understandable, but changing your child's name is a very different matter. Most parents already feel guilty over putting their kids through a divorce, so the last thing they want to do is put their children through any more changes. Then again, the ones that do want to change their children's surname aren't necessarily doing it for the “wrong” reasons. There are, for example, extreme cases where it may be in a child's best interest to be distanced from an extremely abusive or dangerous parent. It's not uncommon in those cases for the courts to allow the children's names to be changed to the name of the primary or sole custodian.
Having said that, the successful rate of name changes for children without an extreme circumstance is very low. The rationale behind the court's conservative stance can be seen in decisions such as Emma v. Evans (2013). This case, which was ultimately decided by the Supreme Court of New Jersey, began when the father discovered that his children were being listed under the mother's name on their school and medical records. He filed a motion to stop this, and the mother fired back by filing for a name change.
The trial court granted the name change, but it was reversed by the appeals court. It was finally brought before the state Supreme Court, which made two very astute observations. First, the court should not lean towards any broad presumptions in favor of a primary custodian, when it comes to decisions as critical as a child's name. Second, the decision to change a name that has been jointly agreed upon should require equal input from both parents. Hence, where both parents have an equal say in a child's welfare, the court must default to the best interests standard.
At this point, you may be wondering, how does a parent prove which name is in the child's best interest? According to the Supreme Court, the burden of proof is on the parent who is seeking the name change. This proof should be based on a set of relevant factors such as the length of time the child has been known by the surname, the child's preference if he or she is mature enough to state a preference, and potential anxiety or discomfort that may result from having a different surname from the custodial parent.
There are many other factors that are listed in the Supreme Court's ruling, which speaks to the serious nature of permanently changing a child's last name. It's also indicative of the uphill road that lies before the parent who files the name change application. If you find yourself in this situation, it's imperative that you speak to an attorney about your rights and legal options, regardless of which side you're on. For more information on changing your child's name after a divorce, please speak with the attorneys of Villani & DeLuca, P.C.