Typically, a child born into a valid marriage receives the husband’s last name. In Massachusetts, the husband is presumed to be the father. There is, however, no law in place that requires the parents to give their child the father’s last name. Massachusetts Supreme Judicial Court ruled that co-parenting parents can choose a different last name for their child if they agree. 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. In one case, an unmarried woman wanted to hyphenate her child’s surname, but clerks altered it. In another case, a married couple applied for a hyphenated last name, but clerks changed it to the father’s.
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 did not address issues about illegitimate children. However, it ruled that married parents can choose a surname for their children, other than the father’s last name.
When parents disagree on a last name for a child, it can happen at birth or after a separation. In divorce cases, lawyers may have to address the potential change of the child’s name. That’s particularly true when one parent despises the other’s last name. If the parties dispute the children’s last name, the Court will apply the “best interests of the child” standard. This will guide the decision on the child’s name.
This standard considers various factors. These include the impact of a name change on the child, the child’s current surname length, the relationship with each parent and siblings, and potential difficulties arising from a name change versus keeping the surname.
In one case, the father of a child born out of wedlock petitioned to change her surname to his. The trial judge agreed. However, 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 to prove that changing the daughter’s last name was in her best interests. He failed to do so.
In another case, the mother of two petitioned to change her children’s surname to her new husband’s. The trial judge declined. However, the appeals court disagreed, finding the trial court’s decision lacked evidence and ignored contrary facts.
If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and one of our experienced family law attorneys will get back to you at our earliest opportunity.