When I had my son his father had left the hospital. The nurse came with the birth certificate and since he was not there he did not sign the necessary papers to have my son's last name his last name. What legal procedures do I need to take to change my son's last name. He is nine years old
Changing son's last name to father's last name
- Thread Starter narvismom
- Start date
- Status
This depends upon the state. The following is a form for changing the name of a minor child in New Jersey state. Here are some excerpts from the text but note - the rules vary by state. In some states and circumstances the consent of the biological father may not be required.
STEP 9: PUBLISH THE ORDER FIXING DATE OF HEARING.
In the Order Fixing Date of Hearing that you receive back from the court, the judge will have specified the name of a local newspaper.
You must have the Order Fixing Date of Hearing published in the newspaper the judge
chooses. It must be published in the newspaper at least two (2) weeks before the date of the hearing. You should talk to the newspaper about how to publish legal notices. Included in this packet as Attachment E is a sample of the newspaper notice.
STEP 10: SEND AFFIDAVIT OF PUBLICATION TO THE COURT.
Once you have published the Order Fixing Date of Hearing, the newspaper will send you an
affidavit of publication, which is proof that you had the newspaper publish the Order Fixing Date of Hearing. You must send the original of this affidavit of publication document to the
court immediately after you get it from the newspaper. Keep a copy of it for your files.
STEP 11: NOTIFY MINOR CHILD'S OTHER PARENT.
If you are changing the name of a child who is under the age of 18 years and the child's other parent does not reside with you, you must send a
copy of the Verified Complaint and the Order Fixing Date for Hearing to the last known
address of the child's other parent. This must be sent by certified mail, return receipt requested. Your post office can tell you how to do this.
STEP 12: COMPLETE PROOF OF MAILING (FORM D) AND SEND TO COURT.
After you have mailed the required copies of the Verified Complaint and signed Order Fixing Date for Hearing, the post office will send you a green card (called a certified mail receipt) that shows the mail was delivered. Once you get it back, fill out the form called Proof of Mailing (Form D) and check each entity to whom you sent a copy of the complaint and order. Be sure to attach the original green certified mail receipt(s) to the original proof of mailing. Send the proof of mailing to the court. Keep a copy of it for your files.
STEP 9: PUBLISH THE ORDER FIXING DATE OF HEARING.
In the Order Fixing Date of Hearing that you receive back from the court, the judge will have specified the name of a local newspaper.
You must have the Order Fixing Date of Hearing published in the newspaper the judge
chooses. It must be published in the newspaper at least two (2) weeks before the date of the hearing. You should talk to the newspaper about how to publish legal notices. Included in this packet as Attachment E is a sample of the newspaper notice.
STEP 10: SEND AFFIDAVIT OF PUBLICATION TO THE COURT.
Once you have published the Order Fixing Date of Hearing, the newspaper will send you an
affidavit of publication, which is proof that you had the newspaper publish the Order Fixing Date of Hearing. You must send the original of this affidavit of publication document to the
court immediately after you get it from the newspaper. Keep a copy of it for your files.
STEP 11: NOTIFY MINOR CHILD'S OTHER PARENT.
If you are changing the name of a child who is under the age of 18 years and the child's other parent does not reside with you, you must send a
copy of the Verified Complaint and the Order Fixing Date for Hearing to the last known
address of the child's other parent. This must be sent by certified mail, return receipt requested. Your post office can tell you how to do this.
STEP 12: COMPLETE PROOF OF MAILING (FORM D) AND SEND TO COURT.
After you have mailed the required copies of the Verified Complaint and signed Order Fixing Date for Hearing, the post office will send you a green card (called a certified mail receipt) that shows the mail was delivered. Once you get it back, fill out the form called Proof of Mailing (Form D) and check each entity to whom you sent a copy of the complaint and order. Be sure to attach the original green certified mail receipt(s) to the original proof of mailing. Send the proof of mailing to the court. Keep a copy of it for your files.
I found the following information:
Oklahoma Name Change Law
Title 12. Civil Procedure
Chapter 33 §1631. Right to Petition for Change of Name.
Any natural person, who has been domiciled in this state or who has been residing upon any military reservation located in said state, for more than thirty (30) days, and has been an actual resident of the county or such military reservation situated in said county, or county in which the military reservation is situated, for more than thirty (30) days, next preceding the filing of the action, may petition for a change of name in a civil action in the district court. If the person be a minor, the action may be brought by guardian or next friend as in other actions.
Chapter 33
§1632. Required Context of Petition.
The petition shall be verified and shall state: (a) The name and address of the petitioner; (b) The facts as to domicile and residence; (c) The date and place of birth; (d) The birth certificate number, and place where the birth is registered, if registered; (e) The name desired by petitioner; (f) A clear and concise statement of the reasons for the desired change; (g) A positive statement that the change is not sought for any illegal or fraudulent purpose, or to delay or hinder creditors.
Chapter 33 §1633. Notice - Protest - Hearing Date - Continuance.
Notice of filing of such petition shall be given, in the manner provided for publication notice in civil cases, by publishing the same one time at least ten (10) days prior to the date set for hearing in some newspaper authorized by law to publish legal notices printed in the county where the petition is filed if there be any printed in such county, and if there be none, then in some such newspaper printed in this state of general circulation in that county. The notice shall contain the style and number of the case, the time, date and place where the same is to be heard, and that any person may file a written protest in the case prior to the date set for the hearing. The hearing date may be any day after completion of the publication. The court or judge, for cause, may continue the matter to a later date.
Chapter 33 §1634. Proof of Petition by Sworn Evidence.
The material allegations of the petition shall be sustained by sworn evidence, and the prayer of the petition shall be granted unless the court or judge finds that the change is sought for an illegal or fraudulent purpose, or that a material allegation in the petition is false.
Chapter 33 §1635. Judgment - Authenticated Copy.
The judgment shall recite generally the material facts and the change granted, or if denied, the reasons for the denial. A certified or authenticated copy of such judgment may be filed in any office, where proper to do so, and shall be regarded as a judgment in a civil action.
Chapter 33 §1636. Fraudulent Use of Judgment a Misdemeanor.
Any person who obtains a judgment under this act, willfully intending to use the same for any illegal or fraudulent purpose, or who thereafter willfully and intentionally uses such judgment, or a copy thereof, for any illegal or fraudulent purpose, shall be deemed guilty of a misdemeanor.
Chapter 33 §1637. Changes of Name to be Effected by this Act - Exceptions.
After the effective date of this act, no natural person in this state may change his or her name except as provided in
Sections 1631 through 1635 of this title and Sections 1 and 3 of this act, other than by marriage or decree of divorce or by adoption.
Oklahoma Name Change Law
Title 12. Civil Procedure
Chapter 33 §1631. Right to Petition for Change of Name.
Any natural person, who has been domiciled in this state or who has been residing upon any military reservation located in said state, for more than thirty (30) days, and has been an actual resident of the county or such military reservation situated in said county, or county in which the military reservation is situated, for more than thirty (30) days, next preceding the filing of the action, may petition for a change of name in a civil action in the district court. If the person be a minor, the action may be brought by guardian or next friend as in other actions.
Chapter 33
§1632. Required Context of Petition.
The petition shall be verified and shall state: (a) The name and address of the petitioner; (b) The facts as to domicile and residence; (c) The date and place of birth; (d) The birth certificate number, and place where the birth is registered, if registered; (e) The name desired by petitioner; (f) A clear and concise statement of the reasons for the desired change; (g) A positive statement that the change is not sought for any illegal or fraudulent purpose, or to delay or hinder creditors.
Chapter 33 §1633. Notice - Protest - Hearing Date - Continuance.
Notice of filing of such petition shall be given, in the manner provided for publication notice in civil cases, by publishing the same one time at least ten (10) days prior to the date set for hearing in some newspaper authorized by law to publish legal notices printed in the county where the petition is filed if there be any printed in such county, and if there be none, then in some such newspaper printed in this state of general circulation in that county. The notice shall contain the style and number of the case, the time, date and place where the same is to be heard, and that any person may file a written protest in the case prior to the date set for the hearing. The hearing date may be any day after completion of the publication. The court or judge, for cause, may continue the matter to a later date.
Chapter 33 §1634. Proof of Petition by Sworn Evidence.
The material allegations of the petition shall be sustained by sworn evidence, and the prayer of the petition shall be granted unless the court or judge finds that the change is sought for an illegal or fraudulent purpose, or that a material allegation in the petition is false.
Chapter 33 §1635. Judgment - Authenticated Copy.
The judgment shall recite generally the material facts and the change granted, or if denied, the reasons for the denial. A certified or authenticated copy of such judgment may be filed in any office, where proper to do so, and shall be regarded as a judgment in a civil action.
Chapter 33 §1636. Fraudulent Use of Judgment a Misdemeanor.
Any person who obtains a judgment under this act, willfully intending to use the same for any illegal or fraudulent purpose, or who thereafter willfully and intentionally uses such judgment, or a copy thereof, for any illegal or fraudulent purpose, shall be deemed guilty of a misdemeanor.
Chapter 33 §1637. Changes of Name to be Effected by this Act - Exceptions.
After the effective date of this act, no natural person in this state may change his or her name except as provided in
Sections 1631 through 1635 of this title and Sections 1 and 3 of this act, other than by marriage or decree of divorce or by adoption.
I also found the following case, which may be relevant:
In the matter of the Application of LANA RENEE STRATTON, by and Through Her Mother, Lisa Kelley, to Change Her Name.
and
In the Matter of the Application of CARA CHRISTINE STRATTON, by and Through Her Mother, Lisa Kelley, To Change Her Name.
G. ROBINSON STRATTON III, Appellant,
v.
LISA KELLEY, Appellee.
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE ROMA McELWEE, TRIAL JUDGE
REVERSED
Patricia A. Kirch, Ardmore, Oklahoma, for Appellant
Joseph K. Heselton, Jr., Jennifer H. Kirkpatrick, PHILLIPS MCFALL MCCAFFREY MCVAY & MURRAH, P.C., Oklahoma City, Oklahoma, for Appellee
JERRY L. GOODMAN, PRESIDING JUDGE:
¶1 G. Robinson Stratton III (Father) appeals the trial court's January 29, 2003, order which granted his ex-wife Lisa Kelley's (Mother) petition to change the surname of Father's biological children from Stratton to that of Mother's new husband, Kelley. The trial court granted the name change over the objection of Father, whose non-custodial parental rights have not been terminated. Based upon our review of the facts and applicable law, we reverse.
FACTS
¶2 The facts are undisputed. Father is the biological father of the minor children Lana and Cara Stratton (Children). Children were born in 1987 and 1990, respectively. Father was divorced from Mother in 1993, when Children were six and three. Mother was granted custody and Father was granted reasonable and seasonal visitation. Father is currently paying child support and daycare expenses, and providing health and life insurance benefits to Children, but has otherwise not significantly participated in the lives of Children for the last six 1 Mother remarried in 1994 and assumed her new husband's name, Kelley. It was not long before Children began using that surname as well. Children have used the Kelley surname since 1994, and are known by that name at church and school, and by their peers.
¶3 In 2001, the oldest child was denied a driving permit in the Kelley name because she was still legally named Stratton. On November 8, 2002, Children, by and through Mother, filed a petition to change Children's names from Stratton to Kelley, pursuant to the Oklahoma Change of Name Act, 12 O.S.2001, §§ 1631 through 1637. 2 Father was asked to waive any objections to the name change, or agree to have his parental rights, and his financial obligations, terminated in order to facilitate Children's adoption by the stepfather. Father declined the request and filed an objection to the name change.
¶4 A hearing was held on January 29, 2002, attended by Father, Mother, and Children. No transcript of the proceedings was recorded, but a narrative statement in lieu of a transcript, executed by the trial judge, was filed April 9, 2003, pursuant to Okla.Sup.Ct.R.1.30, 12 O.S. 2001, ch. 15 app. 1. The trial court granted the petition to change Children's names. 3 Father appeals.
STANDARD OF REVIEW
¶5 The parties disagree on the standard of appellate review. Citing Reed v. Reed, 1959 OK 63, 338 P.2d 350, Mother contends a petition for name change is an equitable action and therefore the standard of review is whether the trial court's order is against the weight of the evidence. Father cites In re Tubbs, size=2>, and argues that because Children's continued use of his surname is a constitutionally protected interest, the standard of review for constitutional questions is de novo. While we agree a constitutionally protected interest is involved, thus entitling Father to due process and adequate notice, we conclude the appropriate appellate standard of review in name change cases to be that set out in Reed:
In an action of equitable cognizance this court will examine the entire record and weigh the evidence, and will reverse the judgment of the trial court if found to be against the clear weight of the evidence or is contrary to established principles of equity. ¶ 19, 338 P.2d at 354-55.
ANALYSIS
¶6 The issue presented is: may a court order a child's name to be changed over the objection of the natural father, whose non-custodial parental rights have not been terminated? While we acknowledge a court may do so, in certain circumstances not present here, we hold the facts in the case before us do not support a name change.
¶7 Our research reveals few Oklahoma cases relevant to the facts and issue presented in this case. In Reed v. Reed, 1959 OK 63, 338 P.2d 350, the Oklahoma Supreme Court held the trial court did not err when it refused to permit the child's name to be changed over the objection of the natural father. The facts in Reed reflect that despite the divorce and his subsequent relocation out of state to attend medical school, the father remained close to his child, participated in the child's life as much as possible, and maintained good relations with the child's mother (his ex-wife), as well as with children's stepfather. Using the best interest test, the Reed Court held it was not an abuse of judicial discretion to deny the name change:
In view of the father and son relationship existing between Dr. Reed and his son and the relationship between the Baldwins and the child, the final determination herein must be on consideration of what, under all the circumstances, is best for the child, coupled with the rights of the parties as such rights refer to and have a direct bearing on the best interest of the child.
. . . .
Dr. Reed has generously contributed to the support of the child, has exhibited a desire to preserve the parental relationship, has visited the child, had the child within [sic] him and has certainly been interested in his progress. This being an action of equitable nature and the court having heard the testimony and finding for Dr. Reed, the judgment of the trial court enjoining the changing of the name will not be disturbed on appeal, unless against the clear weight of evidence. In re Fletcher's Estate, Okl., 269 P.2d 349. From an examination of the entire record, the judgment of the trial court is not against the clear weight of evidence. Reed at ¶¶ 8, 13, 338 P.2d at 352, 353.
¶8 In In re Tubbs, 1980 OK 177, 620 P.2d 384, the Oklahoma Supreme Court reversed a trial court decision changing a child's name to that of a step-parent. Deciding the case on narrow procedural grounds, the Court held:
Every divorced parent-custodial or not-whose paternal or maternal bond remains unsevered, has a cognizable claim to having his/her child continue to bear the very same legal name as that by which it was known at the time the marriage was dissolved. This ancient, valued and inseparable incident of the parental status, merits not an iota less protection of notice under due process than that which stands extended to the larger interest of a parent in preserving-intact and inviolate-the paternal or maternal bond as a whole. Tubbs at ¶ 9, 620 P.2d at 385.
It is generally recognized that a father has a protectible claim in the continued use by the child of the paternal surname in accordance with the usual custom, even though the mother may be the custodial parent. The paternal interest has been alluded to by various terms - a natural right, a fundamental right, a primary or time-honored right, a common-law right, a protectible interest and even a legal right. It has been protected by a variety of procedural devices. While the authorities appear somewhat divided, the better view is that a non-custodial father whose paternal bond remains unsevered has a recognized interest in the child's continued use of his surname. Tubbs at ¶ 5, 620 P.2d at 386-87 (footnotes omitted).
It should be noted that the Court itself described the scope of its opinion:
The question for decision is whether the decree changing a minor's name solely on publication service is void for want of personal notice to the father whose whereabouts were known or readily ascertainable and whose paternal rights remained unextinguished. We hold that because the notice given falls short of the minimum standards of due process the trial court should have vacated its decree. Tubbs at ¶ 1, 620 P.2d at 385.
We need not and do not consider here the constitutional validity of § 1633. Nor do we declare that personal notice to some or any person is essential in every change-of-name proceeding. Our pronouncement in this case is far more narrow. We merely hold that a decree changing a minor's surname without personal notice to a living non-custodial parent whose whereabouts are known or are readily ascertainable from available sources at hand and whose paternal or maternal bond remains unsevered falls short of compliance with the minimum standards of due process. Art. 2 § 7, Okl. Con. (Emphasis added.) Tubbs at ¶ 7, 620 P.2d at 388.
¶9 We note Father does not raise any issues regarding the timeliness or quality of his notice of the proceedings. While we agree Father's right to have his natural children bear his surname is a constitutionally protected right, that right is not absolute. It must be balanced by the best interest of the children.
[t]he final determination herein must be on consideration of what, under all the circumstances, is best for the child, coupled with the rights of the parties as such rights refer to and have a direct bearing on the best interest of the child. Reed at ¶ 8, 338 P.2d at 352.
¶10 In James v. Hopmann, 1995 OK CIV APP 105, 907 P.2d 1098, another division of the Court of Civil Appeals upheld a trial court's decision to change a child's name from that of the natural mother to that of the natural father, who was not married to the natural mother, but was judicially determined to be the natural father. The trial court, applying 4 as the statutory basis for the name change, found the best interest of the child would be advanced by changing the name to that of the natural father, over the objection of the natural mother. The Court of Civil Appeals, using the abuse of discretion standard of review, held that the trial court's decision was not against the weight of the evidence, given that the child was surrounded by loving and supportive extended family on both sides. The court set out a list of factors that "should be considered by the trial judge" before changing a child's name under § 90.4, but declined to impose that list on the trial court, relying on the trial court's wide discretion as a finder of fact. James at ¶ 6,>.
In the matter of the Application of LANA RENEE STRATTON, by and Through Her Mother, Lisa Kelley, to Change Her Name.
and
In the Matter of the Application of CARA CHRISTINE STRATTON, by and Through Her Mother, Lisa Kelley, To Change Her Name.
G. ROBINSON STRATTON III, Appellant,
v.
LISA KELLEY, Appellee.
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE ROMA McELWEE, TRIAL JUDGE
REVERSED
Patricia A. Kirch, Ardmore, Oklahoma, for Appellant
Joseph K. Heselton, Jr., Jennifer H. Kirkpatrick, PHILLIPS MCFALL MCCAFFREY MCVAY & MURRAH, P.C., Oklahoma City, Oklahoma, for Appellee
JERRY L. GOODMAN, PRESIDING JUDGE:
¶1 G. Robinson Stratton III (Father) appeals the trial court's January 29, 2003, order which granted his ex-wife Lisa Kelley's (Mother) petition to change the surname of Father's biological children from Stratton to that of Mother's new husband, Kelley. The trial court granted the name change over the objection of Father, whose non-custodial parental rights have not been terminated. Based upon our review of the facts and applicable law, we reverse.
FACTS
¶2 The facts are undisputed. Father is the biological father of the minor children Lana and Cara Stratton (Children). Children were born in 1987 and 1990, respectively. Father was divorced from Mother in 1993, when Children were six and three. Mother was granted custody and Father was granted reasonable and seasonal visitation. Father is currently paying child support and daycare expenses, and providing health and life insurance benefits to Children, but has otherwise not significantly participated in the lives of Children for the last six 1 Mother remarried in 1994 and assumed her new husband's name, Kelley. It was not long before Children began using that surname as well. Children have used the Kelley surname since 1994, and are known by that name at church and school, and by their peers.
¶3 In 2001, the oldest child was denied a driving permit in the Kelley name because she was still legally named Stratton. On November 8, 2002, Children, by and through Mother, filed a petition to change Children's names from Stratton to Kelley, pursuant to the Oklahoma Change of Name Act, 12 O.S.2001, §§ 1631 through 1637. 2 Father was asked to waive any objections to the name change, or agree to have his parental rights, and his financial obligations, terminated in order to facilitate Children's adoption by the stepfather. Father declined the request and filed an objection to the name change.
¶4 A hearing was held on January 29, 2002, attended by Father, Mother, and Children. No transcript of the proceedings was recorded, but a narrative statement in lieu of a transcript, executed by the trial judge, was filed April 9, 2003, pursuant to Okla.Sup.Ct.R.1.30, 12 O.S. 2001, ch. 15 app. 1. The trial court granted the petition to change Children's names. 3 Father appeals.
STANDARD OF REVIEW
¶5 The parties disagree on the standard of appellate review. Citing Reed v. Reed, 1959 OK 63, 338 P.2d 350, Mother contends a petition for name change is an equitable action and therefore the standard of review is whether the trial court's order is against the weight of the evidence. Father cites In re Tubbs, size=2>, and argues that because Children's continued use of his surname is a constitutionally protected interest, the standard of review for constitutional questions is de novo. While we agree a constitutionally protected interest is involved, thus entitling Father to due process and adequate notice, we conclude the appropriate appellate standard of review in name change cases to be that set out in Reed:
In an action of equitable cognizance this court will examine the entire record and weigh the evidence, and will reverse the judgment of the trial court if found to be against the clear weight of the evidence or is contrary to established principles of equity. ¶ 19, 338 P.2d at 354-55.
ANALYSIS
¶6 The issue presented is: may a court order a child's name to be changed over the objection of the natural father, whose non-custodial parental rights have not been terminated? While we acknowledge a court may do so, in certain circumstances not present here, we hold the facts in the case before us do not support a name change.
¶7 Our research reveals few Oklahoma cases relevant to the facts and issue presented in this case. In Reed v. Reed, 1959 OK 63, 338 P.2d 350, the Oklahoma Supreme Court held the trial court did not err when it refused to permit the child's name to be changed over the objection of the natural father. The facts in Reed reflect that despite the divorce and his subsequent relocation out of state to attend medical school, the father remained close to his child, participated in the child's life as much as possible, and maintained good relations with the child's mother (his ex-wife), as well as with children's stepfather. Using the best interest test, the Reed Court held it was not an abuse of judicial discretion to deny the name change:
In view of the father and son relationship existing between Dr. Reed and his son and the relationship between the Baldwins and the child, the final determination herein must be on consideration of what, under all the circumstances, is best for the child, coupled with the rights of the parties as such rights refer to and have a direct bearing on the best interest of the child.
. . . .
Dr. Reed has generously contributed to the support of the child, has exhibited a desire to preserve the parental relationship, has visited the child, had the child within [sic] him and has certainly been interested in his progress. This being an action of equitable nature and the court having heard the testimony and finding for Dr. Reed, the judgment of the trial court enjoining the changing of the name will not be disturbed on appeal, unless against the clear weight of evidence. In re Fletcher's Estate, Okl., 269 P.2d 349. From an examination of the entire record, the judgment of the trial court is not against the clear weight of evidence. Reed at ¶¶ 8, 13, 338 P.2d at 352, 353.
¶8 In In re Tubbs, 1980 OK 177, 620 P.2d 384, the Oklahoma Supreme Court reversed a trial court decision changing a child's name to that of a step-parent. Deciding the case on narrow procedural grounds, the Court held:
Every divorced parent-custodial or not-whose paternal or maternal bond remains unsevered, has a cognizable claim to having his/her child continue to bear the very same legal name as that by which it was known at the time the marriage was dissolved. This ancient, valued and inseparable incident of the parental status, merits not an iota less protection of notice under due process than that which stands extended to the larger interest of a parent in preserving-intact and inviolate-the paternal or maternal bond as a whole. Tubbs at ¶ 9, 620 P.2d at 385.
It is generally recognized that a father has a protectible claim in the continued use by the child of the paternal surname in accordance with the usual custom, even though the mother may be the custodial parent. The paternal interest has been alluded to by various terms - a natural right, a fundamental right, a primary or time-honored right, a common-law right, a protectible interest and even a legal right. It has been protected by a variety of procedural devices. While the authorities appear somewhat divided, the better view is that a non-custodial father whose paternal bond remains unsevered has a recognized interest in the child's continued use of his surname. Tubbs at ¶ 5, 620 P.2d at 386-87 (footnotes omitted).
It should be noted that the Court itself described the scope of its opinion:
The question for decision is whether the decree changing a minor's name solely on publication service is void for want of personal notice to the father whose whereabouts were known or readily ascertainable and whose paternal rights remained unextinguished. We hold that because the notice given falls short of the minimum standards of due process the trial court should have vacated its decree. Tubbs at ¶ 1, 620 P.2d at 385.
We need not and do not consider here the constitutional validity of § 1633. Nor do we declare that personal notice to some or any person is essential in every change-of-name proceeding. Our pronouncement in this case is far more narrow. We merely hold that a decree changing a minor's surname without personal notice to a living non-custodial parent whose whereabouts are known or are readily ascertainable from available sources at hand and whose paternal or maternal bond remains unsevered falls short of compliance with the minimum standards of due process. Art. 2 § 7, Okl. Con. (Emphasis added.) Tubbs at ¶ 7, 620 P.2d at 388.
¶9 We note Father does not raise any issues regarding the timeliness or quality of his notice of the proceedings. While we agree Father's right to have his natural children bear his surname is a constitutionally protected right, that right is not absolute. It must be balanced by the best interest of the children.
[t]he final determination herein must be on consideration of what, under all the circumstances, is best for the child, coupled with the rights of the parties as such rights refer to and have a direct bearing on the best interest of the child. Reed at ¶ 8, 338 P.2d at 352.
¶10 In James v. Hopmann, 1995 OK CIV APP 105, 907 P.2d 1098, another division of the Court of Civil Appeals upheld a trial court's decision to change a child's name from that of the natural mother to that of the natural father, who was not married to the natural mother, but was judicially determined to be the natural father. The trial court, applying 4 as the statutory basis for the name change, found the best interest of the child would be advanced by changing the name to that of the natural father, over the objection of the natural mother. The Court of Civil Appeals, using the abuse of discretion standard of review, held that the trial court's decision was not against the weight of the evidence, given that the child was surrounded by loving and supportive extended family on both sides. The court set out a list of factors that "should be considered by the trial judge" before changing a child's name under § 90.4, but declined to impose that list on the trial court, relying on the trial court's wide discretion as a finder of fact. James at ¶ 6,>.
¶11 In Re J.S.S., 1995 OK CIV APP 47, 895 P.2d 748, which relied on Tubbs, held that does not permit a parent to change a minor child's last name from that of his natural father over the father's objection. This state has never permitted such a name change for the convenience of the mother when the paternal bond remains unsevered. J.S.S. at ¶ 2, 895 P.2d at 748.
We do not interpret Tubbs to completely forbid changing a minor's name over the objection of the natural father. Therefore we decline to fully adopt J.S.S.'s reasoning. We interpret Tubbs as defining the quality of the right involved, and also defining the quality of the notice and due process procedures that must be accorded the holder of that right before that right can be modified. Indeed, Tubbs itself implicitly recognized that, under the proper circumstances, a name change over the objection of a non-custodial parent can occur:
We merely hold that a decree changing a minor's surname without personal notice to a living non-custodial parent whose whereabouts are known or are readily ascertainable from available sources at hand and whose paternal or maternal bond remains unsevered falls short of compliance with the minimum standards of due process. Art. 2 § 7, Okl. Con. Tubbs , at ¶ 7.
Thus, a court may change the name of a child from that of the natural father whose parental bond remains unsevered, even over his objection, as long as the natural father has been accorded the due process protections commensurate with the protected property interest now subjected to the exercise of judicial power. To so interpret § 1631 otherwise would require us to read a prohibition into § 1631 that does not exist.
¶12 Section 1634 of the Oklahoma Change of Name Act states:
The material allegations of the petition shall be sustained by sworn evidence, and the prayer of the petition shall be granted unless the court or judge finds that the change is sought for an illegal or fraudulent purpose, or that a material allegation in the petition is false. (Emphasis added.)
From the foregoing text, it is obvious that had the legislature intended a name change to be contingent on the express permission of a parent whose parental rights remained unsevered, it would have so stated. Instead, the only statutory impediment to a name change is a finding that the change is for an illegal or fraudulent purpose. No such allegations are raised in this case. Parenthetically, we note §§ 1631 and 1634 have remained virtually unchanged since their enactment in 1953.
¶13 Thus, while an argument can be made that a trial court has no discretion but to change the name of a minor child under § 1634, that section must be read in conjunction with the public policy concerns set out in Tubbs. As quoted above, the Oklahoma Supreme Court set out the extensive history and logic for keeping the parental bond between a child and a parent intact, which use of a natural father's surname supports.
¶14 We conclude that under these facts, the trial court erred in ordering the name change. In this connection, we find Father's argument that his surname, which is his birthright to his children, is perhaps the last tangible link to his family. This link should not be severed as a convenience to Children or to Wife. It should only be severed under the most compelling circumstances, which are not present here.
¶15 Father testified that since her remarriage, Mother engaged in a practice and pattern of interfering with Father's attempts to maintain a parental bond with Children. This was done, according to Father, through actions such as not returning phone calls, scheduling social engagements in conflict with Father's visitation schedule, and prohibiting Children's visits with the paternal grandparents. Father decided not to exacerbate the tense situation between him and Mother or jeopardize his already tenuous bond with Children, so he elected not to exercise any significant visitation until Children were older. Father testified he planned to reestablish contact with Children when they were older and he would not have to contend with Mother's interference. Further, Father's faithful payment of child support can be construed as evidence of his desire to maintain a parental relationship, as do his refusals to consent to the name change or adoption, even though to do so would be of financial benefit to him. These factors, taken as a whole, support Father's argument that he is trying to do what is best for his children in difficult circumstances. To sever the last remaining familial link between him and Children simply for their convenience is not in their best interest.
¶16 We are not unmindful that Children have elected to be known by a different name than Father's. However, that is a choice of convenience for them, and their legal surname remains that of Father, their choices notwithstanding. Upon reaching legal age, Children have options available to them, when neither parent is in a position to object.
¶17 REVERSED.
REIF, J., and RAPP, J., concur.
FOOTNOTES
1 For reasons set out elsewhere in this opinion, Father chose not to exercise any significant visitation or parental contact for the six years preceding filing of the petition for name change.
2 Title provides:
Any natural person, who has been domiciled in this state or who has been residing upon any military reservation located in said state, for more than thirty (30) days, and has been an actual resident of the county or such military reservation situated in said county, or county in which the military reservation is situated, for more than thirty (30) days, next preceding the filing of the action, may petition for a change of name in a civil action in the district court. If the person be a minor, the action may be brought by guardian or next friend as in other actions.
3 Father also requested a change of visitation. This was denied by the trial court, but is not an issue on appeal.
4 Now, this section states in part:
A. At any time after a determination of paternity, the mother, father, custodian or guardian of the child may file a motion requesting the court to order that the surname of the child be changed to the surname of its father. . . .
B. If, after said hearing, the judge finds that it is in the best interest of the child to bear the paternal surname, the court shall enter an order to that effect . . . .
We do not interpret Tubbs to completely forbid changing a minor's name over the objection of the natural father. Therefore we decline to fully adopt J.S.S.'s reasoning. We interpret Tubbs as defining the quality of the right involved, and also defining the quality of the notice and due process procedures that must be accorded the holder of that right before that right can be modified. Indeed, Tubbs itself implicitly recognized that, under the proper circumstances, a name change over the objection of a non-custodial parent can occur:
We merely hold that a decree changing a minor's surname without personal notice to a living non-custodial parent whose whereabouts are known or are readily ascertainable from available sources at hand and whose paternal or maternal bond remains unsevered falls short of compliance with the minimum standards of due process. Art. 2 § 7, Okl. Con. Tubbs , at ¶ 7.
Thus, a court may change the name of a child from that of the natural father whose parental bond remains unsevered, even over his objection, as long as the natural father has been accorded the due process protections commensurate with the protected property interest now subjected to the exercise of judicial power. To so interpret § 1631 otherwise would require us to read a prohibition into § 1631 that does not exist.
¶12 Section 1634 of the Oklahoma Change of Name Act states:
The material allegations of the petition shall be sustained by sworn evidence, and the prayer of the petition shall be granted unless the court or judge finds that the change is sought for an illegal or fraudulent purpose, or that a material allegation in the petition is false. (Emphasis added.)
From the foregoing text, it is obvious that had the legislature intended a name change to be contingent on the express permission of a parent whose parental rights remained unsevered, it would have so stated. Instead, the only statutory impediment to a name change is a finding that the change is for an illegal or fraudulent purpose. No such allegations are raised in this case. Parenthetically, we note §§ 1631 and 1634 have remained virtually unchanged since their enactment in 1953.
¶13 Thus, while an argument can be made that a trial court has no discretion but to change the name of a minor child under § 1634, that section must be read in conjunction with the public policy concerns set out in Tubbs. As quoted above, the Oklahoma Supreme Court set out the extensive history and logic for keeping the parental bond between a child and a parent intact, which use of a natural father's surname supports.
¶14 We conclude that under these facts, the trial court erred in ordering the name change. In this connection, we find Father's argument that his surname, which is his birthright to his children, is perhaps the last tangible link to his family. This link should not be severed as a convenience to Children or to Wife. It should only be severed under the most compelling circumstances, which are not present here.
¶15 Father testified that since her remarriage, Mother engaged in a practice and pattern of interfering with Father's attempts to maintain a parental bond with Children. This was done, according to Father, through actions such as not returning phone calls, scheduling social engagements in conflict with Father's visitation schedule, and prohibiting Children's visits with the paternal grandparents. Father decided not to exacerbate the tense situation between him and Mother or jeopardize his already tenuous bond with Children, so he elected not to exercise any significant visitation until Children were older. Father testified he planned to reestablish contact with Children when they were older and he would not have to contend with Mother's interference. Further, Father's faithful payment of child support can be construed as evidence of his desire to maintain a parental relationship, as do his refusals to consent to the name change or adoption, even though to do so would be of financial benefit to him. These factors, taken as a whole, support Father's argument that he is trying to do what is best for his children in difficult circumstances. To sever the last remaining familial link between him and Children simply for their convenience is not in their best interest.
¶16 We are not unmindful that Children have elected to be known by a different name than Father's. However, that is a choice of convenience for them, and their legal surname remains that of Father, their choices notwithstanding. Upon reaching legal age, Children have options available to them, when neither parent is in a position to object.
¶17 REVERSED.
REIF, J., and RAPP, J., concur.
FOOTNOTES
1 For reasons set out elsewhere in this opinion, Father chose not to exercise any significant visitation or parental contact for the six years preceding filing of the petition for name change.
2 Title provides:
Any natural person, who has been domiciled in this state or who has been residing upon any military reservation located in said state, for more than thirty (30) days, and has been an actual resident of the county or such military reservation situated in said county, or county in which the military reservation is situated, for more than thirty (30) days, next preceding the filing of the action, may petition for a change of name in a civil action in the district court. If the person be a minor, the action may be brought by guardian or next friend as in other actions.
3 Father also requested a change of visitation. This was denied by the trial court, but is not an issue on appeal.
4 Now, this section states in part:
A. At any time after a determination of paternity, the mother, father, custodian or guardian of the child may file a motion requesting the court to order that the surname of the child be changed to the surname of its father. . . .
B. If, after said hearing, the judge finds that it is in the best interest of the child to bear the paternal surname, the court shall enter an order to that effect . . . .
- Status
Ask a Question
Share this page
