Child’s Name Change
by Wes Cowell, updated 3 May 2016 -- suggest a correction
Changing a child's name is allowed when "necessary" to serve the child's best interest. The other parent must be notified. Need advice? Call, leave your info, or scheduleschedule a consult.
Background: When a child is born, the midwife or hospital staff present the parents with documents on which they record the child's name. That's the name that goes on the birth certificate and all other legal documents. Most couples come to an agreement about the baby's name brefore the big day. Sometimes, however, one parent later wants to change the child's last name -- either a father who was left out of the birth, or a mother who agreed to use father's last name only to learn later what a bad idea that was. So, what happens when one parent wants to change the name on the baby's birh certificate?
Illinois' name-change law changed in 2007. Even then, it was possible to effect a "common law name change" (you just started using your new name and never bothered with court) up until 2010 when those were abolished. The prior name change law for children allowed cases to be filed only by parents having custody -- non-custodial parents were powerless to file name-change cases for their own children. See, e.g., In re: Marriage of Charnogorsky, 302 Ill.App.3d 649, 707 N.E.2d 79 (1st Dist., 1998). You should ignore those cases when they turn up in your research as the law on which they were based has been amended. There are two ways to change a child's name: 1) in parentage case if the parents agree, 2) by filing a case in equity, whether the parents agree or not.
Agreement in Parentage Cases: In parentage (never-married) cases, Illinois law (750 ILCS 46/802(h)) allows that, if the parents agree, the court may order within the Parentage Judgment (that's the original judgment that establishes who the father is, spells out decision-making power, sets child support and a parenting schedule) that the child's name be changed. The law says: "(h) On the request of both parents, the court shall order a change in the child's name." 750 ILCS 46/802(h).
In Divorce Cases: There is no provision in the divorce law that gives a divorce judge the authority to change a child's name. Name change actions are filed separately "in chancery" using 735 ILCS 5/2-101. Some counties have separate chancery courts; they are courts of equity that deal with matters other than lawsuits for money.
In Equity / Chancery: Illinois law (735 ILCS 5/21-101) applies in parentage cases where the parents don't agree, as well as divorce cases. The law says:
[A name change] order shall be entered as to a minor only if the court finds by clear and convincing evidence that the change is necessary to serve the best interest of the child. In determining the best interest of a minor child under this Section, the court shall consider all relevant factors, including:
The wishes of the child's parents and any person acting as a parent who has physical custody of the child.
The wishes of the child and the reasons for those wishes. The court may interview the child in chambers to ascertain the child's wishes with respect to the change of name. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.
The interaction and interrelationship of the child with his or her parents or persons acting as parents who have physical custody of the child, step-parents, siblings, step-siblings, or any other person who may significantly affect the child's best interest.
The child's adjustment to his or her home, school, and community.
Burden of Proof: The movant must meet the required burden proof. Illinois law 735 ILCS 5/21-101 requires clear and convincing evidence that the change is necessary to serve the best interest of the child. That's a very high standard.
In one case, a child was being teased at school due to the fact that his last name was different from his mother's. Despite the evidence of the child's situation, the court denied the mother's request to change the child's name. In re: Mattson, 240 Ill.App.3d 993, 181 Ill.Dec.810, 608 N.E.2d 1284 (2d Dist., 1993). The court said:
a child whose parents had been divorced was bound to suffer some confusion and embarrassment because his name was different from his mother's, but . . . this fact alone [is] not sufficient to warrant changing his name . . . . The non-custodial parent necessarily is at a disadvantage in maintaining a strong relationship with the child and maintenance of the parent's name goes far toward demonstrating his continuing interest in and identity with the child.
In re: Mattson, 240 Ill.App.3d 993, 181 Ill.Dec.810, 608 N.E.2d 1284 (2d Dist., 1993), citing In re: Marriage of Presson, 102 Ill.2d 303, 80 Ill.Dec. 294, 465 N.E.2d 85 (1984).
It should be noted that in Mattson the disparity between the child's and mother's last names would have existed even without the divorce as she did not take her husband's last name when they married. The mother could have taken her husband's name or even changed her name after the divorce to resolve the playground teasing issue. It seems the mother's name change request was merely an attempt to further damage the father-child relatinoship.
Injunctions: Although the divorce court lacks jurisdiction to do a name change for a child, the divorce court CAN enjoin (issue and injunction against) a parent from commencing a name change case. In re: Marriage of Presson, 102 Ill.2d 303, 80 Ill.Dec. 294, 465 N.E.2d 85 (1984).
De Facto Name Changes: Sometimes a parent will forego a name change case and will simply start using a new name for the child with school registration, medical records, etc. The family courts have the power to prevent such actions and to undo them, after-the-fact. The Illinois Supreme Court has said:
A de facto change accomplished by substituting Kelley for Presson on Gregory's school, medical and other records may have as great an effect on Gregory's daily life as a legal change. Since the court has jurisdiction to enjoin a legal change of name proceeding, it has jurisdiction to enjoin any other formal change of name as well. Cf. Mark v. Kahn (1956), 333 Mass. 517, 131 N.E.2d 758 (school enrollment); Clinton v. Morrow (1952), 220 Ark. 377, 247 S.W.2d 1015 (school enrollment); Hall v. Hall (1976), 30 Md.App. 213, 351 A.2d 917 (name child is called by school teachers and other community members).
Applies to Hyphenating Names: Adding a new surname with a hyphen is held to the same rigorous requirements as a name change. In re: Marriage of Schaeffer, 161 Ill.App.3d 841, 113 Ill.Dec.725, 515 N.E.2d 710 (1st Dist., 1987).
Notice Requirement: The law says that a parent must be given "reasonable notice and opportunity to be heard." The parent seeking the name change must satisfy the notice requirements. In re: San Juan-Moeller v. Moeller 343 Ill.App.3d 202, 796 N.E.2d 736, (2d Dist., 2003). If you know the other parent's address, notice must be given to the parent. 735 ILCS 5/21-103. If you don't know the other parent's address, you must mail notice to the parent's last known address and publish notice, as well. 735 ILCS 5/21-103.
Work with a Lawyer -- Name Changes are Frowned Upon: If you are hoping to change your child's name, you should definitely work with one of our knowledgeable and xperienced attorneys, because even the Illinois Supreme Court has noted that the Illinois courts do not liberally allow name changes for children. In re: Marriage of Presson, 102 Ill.2d 303, 80 Ill.Dec. 294, 465 N.E.2d 85 (1984).
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