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CHILD ALLOWED TO KEEP MOTHER’S LAST NAME IN THE CASE OF UNMARRIED PARENTS

FACTS:

An Agreed Order was entered in June of 2014 establishing paternity and setting Father’s child support payments. At the hearing, Father presented an oral motion to change the child’s surname to his surname from Mother’, which was granted. The court noted several grounds for changing the child’s name, including fathers “substantial” contact with the child and his financial assistance to Mother. The court also states that changing the child’s name would strengthen her relationship with her parents and protect her from embarrassment from having Mother’s name. Mother immediately appealed.

REVIEW:

In Tennessee, if the mother was not married at the time of conception, birth, or any period of time in between, the Father’s surname should not be entered on the birth certificate.  The child will carry Mother’s surname unless both parents agree to adopt Father’s name. Establishing paternity does not warrant the changing of a child’s name, unless ordered by the court. The court must also make a judgment of best interest before changing the child’s name.

Tenn. Code Ann. § 68-3-305 provides, in relevant part: If the mother was not married at the time of either conception or birth or between conception and birth, the name of the father shall not be entered on 4 the certificate of birth and all information pertaining to the father shall be omitted, and the surname of the child shall be that of either: (A) The surname of the mother; (B) The mother’s maiden surname; or (C) Any combination of the surnames listed in subdivisions (b)(1)(A) and (B).

The statute further provides: In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court. Tenn. Code Ann. § 68-3-305(c).

The Appellate Court noted:

Under the statute, a non-marital child carries his or her mother’s surname “unless both parents have requested otherwise.” Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993); In re Jacob H.C., No. M2012-02421-COA-R3-CV, 2013 WL 6155608, at *3 (Tenn. Ct. App. Nov. 20, 2013) (citing Tenn. Code Ann. § 68-3-305(c); Sullivan v. Brooks, No. M2009-02510-COA-R3-CV, 2011 WL 2015516, at *1 (Tenn. Ct. App. May 23, 2011)). The child’s surname is not changed following a paternity proceeding unless the court so orders. Id. Moreover, “the courts should not change a child’s surname unless the change promotes the child’s best interests.” Id. (citations omitted). The burden of proof is on the party seeking to change the child’s surname to demonstrate that the change is in the child’s best interests. Id. (citations omitted). When determining whether changing the child’s surname is in the child’s best interests, factors to be considered by the court include: (1) the child’s preference, (2) the change’s potential effect on the child’s relationship with each parent (3) the length of time the child has had its present surname, (4) the degree of community respect associated with the present and proposed surname, and (5) the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed surname.

Upon review, the Appellate Court finds that Father’s contact with the child was not substantial, equaling only 10 visits over a 6 month period, that Father failed to pay child support until the State took action against him, that Father was not present for the birth of the child or during prenatal care, and he failed to contribute to the expenses of the birth or prenatal care.  The Trial Court made no findings to support the finding that the child would face embarrassment from having Mother’s surname, and  the Appellate Court found that both names are equally respected in the community. Therefore, there were  no legal grounds for the preference of a paternal surname. Accordingly, Father failed to provide evidence to support his position that changing the child’s surname would be in the child’s best interest.

The Court of Appeals reverses the judgment of the Trial Court and return the child’s surname to that of the Mother.

Knoxville Family Law Attorney