Typically, a child born into a valid marriage will receive the last name of the husband, who in Massachusetts is presumed to be the father of the child. There is, however, no law in place which requires the parents to give their child the father’s last name. In fact, if the parents who are co-parenting agree to a different last name for the child, they have the right to choose that last name according to an important decision by the Massachusetts Supreme Judicial Court. While this may not seem so exciting, we family law attorneys love this stuff!
In the 1977 case of Secretary of the Commonwealth v. City Clerk of Lowell, the Court considered several cases brought against city clerks who had refused to follow the opinion of the Attorney General regarding the recording and use of names, without respect to the desires of the people who filed their children’s birth certificates. The facts of the cases varied: in one case, an unmarried woman attempted to hyphenate her child’s last name, but the clerks changed it to her name; in another case, a married couple applied for a hyphenated last name for their child, based on both of their last names, but the clerks changed it to the father’s last name; and so on.
The Court noted that a long-standing legal custom allowed adults the freedom to choose and change their names. “We think the _ principle of freedom of choice in the matter of names extends to the name chosen by a married couple for their child,” the Court reasoned. “They may change their own names at will, and need not have the same surname. It seems to us to follow that they need not give their child the father’s surname, though of course they may.” The Court declined to address issues regarding illegitimate children, but established that married parents may decide to give their children a surname other than the father’s last name.
But what happens when the parents do not agree as to what the child’s last name should be—whether at birth, or later, after a separation which causes one parent to wish to change the child’s last name? When parents divorce, there are case in which the divorce lawyer must grapple with the potential change of a child’s name. That’s particularly true when one parent despises the other’s last name. When the parties are in a dispute about the child’s last name, the Court will use the “best interests of the child” standard to determine what the child’s name should be. As always, this standard takes into consideration many different factors: in this context, the factors include the effect of a name change on the child; the length of time the child has had his or her last name; the relationship the child has to each parent, as well as to his or her siblings; and any difficulties the child may experience in the event of a name change versus keeping the child’s surname the same.
In one case, the father of a child born out of wedlock petitioned to have his daughter’s last name changed from the mother’s surname to his own. The trial judge sided with the father and ordered the child to bear the paternal surname, but the appeals court disagreed. “In the circumstances presented here, we hold that there is no presumption favoring the father’s right to have his child bear his name solely because he provides financial support and recognizes the child as his own,” the Court noted; rather, the father had the burden on proving that changing the daughter’s last name was in her best interests, which he failed to do.
In another case, the mother of two children petitioned the court to change the children’s last name from the last name of their father (her former husband) to the last name of her new husband. The trial judge declined to do so, but the appeals court again disagreed, holding that the trial court based its decision on the consideration of factors that lacked firm foundation in evidence, and ignored contrary evidence.
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