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April 18, 2011

When A TX Petition To Change A Minor's Name Is Contested By A Non-custodial Parent: Law And Procedure

Frequently, name change petitions that are filed by custodial parents on behalf of their children are uncontested. In such circumstances, they are often completed in a quick and relatively straightforward manner. Typically, parents are able to file such proceedings and complete them – start to finish – without retaining an attorney.

However, the situation is considerably different when a custodial parent's name change petition, filed on behalf of his or her child, is contested by the non-custodial parent. In such circumstances, the trial court must take testimony by both sides (i.e., both parents). Under Texas law, the legal standard applicable to minor name change applications is whether, based on the testimony and evidence presented, it is shown that the proposed name change is in the best interests of the child. See, Tex Fam. Code Ann. § 45.004(a)(1) (Vernon 2003). A trial court is given wide latitude in determining the best interests of a minor child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

Under Texas law, the issue of whether a proposed minor name change is in the best interest of the minor child hinges on consideration of the following 12 factors:

(1) Whether the changed name or the present name would best avoid embarrassment, inconvenience, or confusion for the custodial parent or the child;

(2) Whether it would be more convenient or easier for the child to have the same name as or a different name from the custodial parent, either the changed name or the present name;

(3) Whether the changed name or the present name would help identify the child as part of a family unit;

(4) The length of time the surname has been used;

(5) Parental misconduct, such as support or non-support or maintaining or failing to maintain contact with the child;

(6) The degree of community respect associated with the present or changed name;

(7) Whether the change will positively or adversely affect the bond between the child and either parent or the parents' families;

(8) Any delay in requesting or objecting to name change;

(9) The preferences of the child;

(10) The age and maturity of the child;

(11) When the child maintains the mother's surname, assurances by the mother that she would not change her name if she married or remarried; and

(12) Whether the parent seeking the change is motivated by an attempt to alienate the child from the other parent.

In re Guthrie, 45 S.W.3d at 725-726.

As noted above, the most common situation in which a minor's name change is sought occurs when a child has expressed a desire to share the same last name as his or her custodial parent. Oftentimes, a child expresses a sense of embarrassment or discomfort because his/her last name is different than that of his/her custodial parent and/or step-siblings. However, there are countless other circumstances that can result in name change petitions being filed on behalf of a minor child in Texas. Sometimes, a child's legal name (the name on his or her birth certificate) is not the name by which he or she is commonly known. In other instances, a child expresses a desire to use a more "American" sounding name than the name that he or she was given at birth.

The countless permutations and situations that can result in the filing of a minor name change petition are reflected by the Texas Court of Appeals decision in the case of Scoggins v. Trevino, 200 S.W.2d 832 (2006). That case involved the unusual situation of a custodial mother requesting that the parties' child's last name be changed to surname of the non-custodial father. Apparently, the subject child had been born out-of-wedlock, and her identity had been kept a secret by the father. The told the court that wished that his out-of-wedlock daughter's relationship with him remain a secret from his other children and members of the community. Both the trial and appellate court ruled in favor of the custodial mother, and granted the requested name change. In upholding the trial court's order, the appellate court commented:

Confusion about the identity of Julie's father, half siblings, and other close relatives could easily cause Julie embarrassment, humiliation, and inconvenience now and in the future.

Id. at 837. The appellate court further noted that the surname given to the child at birth was solely for the purpose of shielding her actual relationship with the father. The court deemed it inappropriate and harmful for the child to continue having a last name that was given to her solely for the purpose of concealing her relationship with her actual father. Accordingly, the proposed name change was held to be in the subject child's best interests.

Certainly, the factual circumstances at issue in the Scoggins decision were atypical. However, the factual and legal standard that were used by courts at both the trial and appellate levels reflected the emphasis that Texas law places upon the subject child's best interests.

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