Changing the surname of a child

Changing a child’s surname is often an issue in divorce in England. It ranks up there with custody of children or access to children. Or the parents may not be married and the father may wish to have the child carry his surname or the mother may wish to revert to her maiden name after a divorce and also change the child’s surname.

Changing surname is invariably contentious because a lot of emotion can be invested in the surname. Consider the following examples:-

1. Mother and father are unmarried and child takes father’s surname at birth by father’s consent. Mother and father subsequently split up. Mother meets another man, marries and has children by him. She wants all her children to have the surname of her husband. Can the father of the first child object?

2. Mother and father are married but otherwise the facts are as above. Mother and father divorce and mother meets new man, remarries and has more children. Does it make any difference that mother and father of the child were originally married? Does a married partner have greater rights over the surname of the child than an unmarried father?

The law is really quite straightforward. On birth the name of the child, including the surname, has to be registered within 42 days. In the case of a married couple this is the responsibility of both parents. In the case of an unmarried couple the responsibility is the mother’s alone.

Normally a child born to a married couple will bear the surname of the father. However, in the case of an unmarried couple the child can only bear the surname of the father if the father consents. The mother cannot simply give her child the surname of the child’s father without the father’s consent.

So much for that. But what happens when one parent wants to change the surname of the child if circumstances subsequently change – following divorce, separation or for some other reason? If both parents consent then there is no problem at all. The child will be called by whatever surname they agree. However, it is often the case that the parents do not agree in these circumstances.

Typically, the child’s mother will wish to change the child’s surname from that of his father to her own surname or to that of her new partner. The child’s father then objects. Under such circumstances the child’s father can attempt to prevent the change of surname and very often making the objection and threatening court proceedings if the mother does not agree to abandon the plan is sufficient to deter the mother from changing the child’s surname.

However, what happens if she is not deterred and so changes the child’s surname in opposition to the wishes of the child’s father? In that case the father can apply to the court under the Children Act and ask the court to decide a “specific issue” – namely, whether the child’s surname should be changed or not.

What are the principles upon which the courts base their decisions in such circumstances? The test is always the same – what is in the best interests of the child. This probably does not tell the competing parties much because mother will naturally think it is in the child’s best interest that the surname be changed and father will think it is in the child’s best interests that the name remain the same.

However, in practice there are rules about these things which have been distilled from previous cases. Of course, it is difficult to find cases which are in every respect identical but there are certain basic principles.

If you need to know more about the principles behind changing a child’s surname please continue.


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