One of the enquiries that many family lawyers get from their clients who have children and who have separated or divorced, concerns the rights and legalities of changing a child’s name. Most usually that will be to change their surname rather than their first name, although that does get raised occasionally.

Almost without exception enquiries to family lawyers about changing a child’s surname will come from the child’s mother, who, having changed her surname when she got married, wishes to either revert to her maiden name or it could be she is going to remarry and change her surname to that of her new spouse. It follows that the child’s mother may want her child’s surname to match hers for practical and emotional reasons.

Family Law And Shared Parental Responsibility

One of the core principles enshrined in current family law, and in particular the 1975 Family Law Act, is that of shared parental responsibility. It means that, even if a child lives primarily with one of their parents, their absent parent has as much say in their child’s well-being as the resident parent. As such, a child’s mother cannot make important decisions about the child, including what surname they use, independently and without discussion with the child’s father.

What she must do is discuss these matters with the child’s other parent, and if she wishes to change the child’s surname, do likewise. It is possible, for perfectly understandable reasons, that a father may not wish their child’s surname to be changed. This will often be done, not out of spite, or in any way to antagonise the child’s mother, but for valid emotional reasons and believing that the child’s interests are best served by them retaining their current surname.

However, there may also be fathers who are content for their surname to be removed from their child and to revert to their mother’s maiden name or even that of a step-father should the mother remarry. When such an agreement is made between both parents they can then apply to the Births, Deaths, and Marriages Registry for the surname change to be formally and legally made.

When No Agreement Exists To Change A Child’s Surname

If there is no initial agreement between the parents concerning changing their child’s surname, then their family lawyers are likely to advise that the next stage is family dispute resolution. Part of that advice is based on the fact that the Family Court expects parties who cannot agree on family law matters to attempt to resolve their disputes before they seek rulings from the court. The exceptions to this principle will be in cases where violence, child abuse, and urgency exist.

If the family dispute resolution process does not result in any agreement between the parents, then the Family Court can be asked to make a ruling, however, it will first want to see evidence that a genuine attempt was made to seek a resolution. If it is satisfied that there was, then it will consider several factors to determine if a change of surname for a child is to be granted. These factors include:

• The child’s welfare and best interests
• The effects, short term, and long term, of the child’s surname being changed
• The benefits, short term, and long term, of the child’s surname being changed or the current one being retained
• Whether the child is likely to suffer any embarrassment as a result of their surname being changed
• Any levels of confusion concerning the child’s identity that may arise whether or not their surname is changed
• How much time the child spends with each of their parents
• What effects a change in the child’s surname may have on their relationship with the parent whose surname they would be relinquishing
• If any previous surname changes have taken place in the past, how many have taken place, and what their effects were

As with all matters relating to family law, including where a change of their child’s surname is being considered, parents should seek the advice of a family lawyer.