Determining the Best Interest of the Child: The Resolution of Name Disputes in Paternity Actions
As William Shakespeare noted, a rose by any other name would smell as sweet,1 but when a mother wants to name her daughter Rose and the father wants to name her Daisy, the court may smell trouble instead. When a child is born, ideally both the mother and the father jointly decide the child’s name. However, when the parents cannot agree, especially if the mother is not married to the father at the time of the birth, determining the name of the child becomes more difficult under the law. This article will explore the statutory guidelines for establishing a child’s name, as well as Florida’s application of the “best interest of the child” standard when the parties cannot agree on the child’s name. Disputes over both surnames and given names will be discussed, as well as issues that can arise in the context of modification proceedings, in addition to initial paternity proceedings.
Florida’s birth registration statute, F.S. §382.013, establishes the parameters for how a child’s name will appear on a birth certificate in a variety of factual contexts.
Section 3, “Name of Child,” provides that if the mother is married at the time of the birth, the mother and father whose names are entered on the birth certificate shall select the given name and surname of the child if both parents have custody of the child. Otherwise, the parent who has custody shall select the child’s name. The statute further provides that if the parties disagree on the surname of the child, and both parents have custody, the surname selected by the father and the surname selected by the mother shall both be entered on the birth certificate, separated by a hyphen, with the selected names entered in alphabetical order. Further, the statute provides that if the parents disagree on the selection of a given name, the given name may not be entered on the certificate until a joint agreement that lists the agreed-upon given name and is notarized by both parents is submitted, or “until a given name is selected by a court.”
Similarly, the statute provides that if the mother is not married at the time of birth, the parent who will have custody of the child shall select the child’s given name and surname. Section 2 provides that if the paternity of the child is determined by a court of competent jurisdiction, the name of the father and the surname of the child shall be entered on the certificate “in accordance with the finding and order of the court.”
default, under §2, if the court fails to specify a surname for the child in a paternity action, the surname shall be entered in accordance with §3, resulting in a hyphenated last name in alphabetical order.
Since Florida law presumes that shared parenting is the preferred parenting arrangement in most circumstances, absent a court order awarding custody to one parent or the total absence of one parent, the provisions of the statute dealing with both parents having custody normally will be controlling.
A dispute over a given name generally will require court action, since the statute prevents any given name from being included on the birth certificate without a joint agreement. A dispute over the surname may or may not be resolved by court action, since the statute recognizes an automatic nonjudicial solution to the surname issue if the parents are married (a hyphenated last name in alphabetical order), but presumes a court finding and order will be entered if the parents are not married (only using a hyphenated name as a backup by default in the event the judge in the paternity action fails to address the name issue). The statute does not recognize any right on the part of a married parent in a shared parenting context to litigate over the proper surname of a child, since it provides for an automatic remedy in the form of a hyphenated name whenever the parents cannot agree.
When the ultimate decision as to a child’s name is placed in the hands of the court, an analysis must be made of the standard to be applied by the court, the potential proof to be presented to the court, and the arguments which may be available in various factual circumstances.
Development of Standard
A decision to impose a name on a child by court order is not to be taken lightly, to be made without adequate proof, nor to be made based on the interests of the parents, rather than the child.
In Lazow v. Lazow, 147 So. 2d 12 (Fla. 3d DCA 1962), the court heard an appeal from a father who opposed his ex-wife’s attempt to change their son’s surname to the mother’s maiden name. In reversing the lower court’s decision to allow the mother to change the child’s name, the Third District Court of Appeal noted that to change the name of a child so that it no longer bears the name of his or her father is a serious matter “and such action may be taken only where the record affirmatively shows that such change is required for the welfare of the minor.” Lazow, 147 So. 2d at 14. This case appears to have been the first to articulate a “best interest of the child” standard in determining the name of the child.
The First District Court of Appeal articulated the standard even more specifically in Collinsworth v. O’Connell, 508 So. 2d 744 (Fla. 1st DCA 1987). In Collinsworth, upon determining the father’s paternity, the trial court ordered an amendment to the name on the birth certificate to reflect the child’s natural father’s surname based on no supporting findings other than the fact of paternity. The First District Court of Appeal held that since the order and record on appeal reflected no clear legal or factual support for a change of name, other than the fact of paternity, a remand was necessary for reconsideration of the issue pursuant to the standard articulated in Lazow. The court noted that this standard, emphasizing the best interest of the child rather than the parents, would give effect to the same factors which govern custody decisions. The court went on to note that a name change does not substantially affect the parental relationship and that the discretion of court in such cases is to be exercised on the basis of some evidence other than a party’s conclusory assertions.
In spite of this case law, since that time trial courts have repeatedly ordered changes in children’s surnames based only on findings of paternity, although such decisions have been routinely reversed by the courts of appeal.
For example, in Girten v. Andreu, 698 So. 2d 886 (Fla. 3d DCA 1997), the appellate court reversed the trial court’s judgment which changed the child’s surname to the father’s, based solely on the father’s testimony that the reason that he wanted the surname changed was “because I’m the baby’s father and customarily children are named after their father.” As the Third District noted, the party seeking the name change bears the burden of proof and the court’s decision must be based on some evidence other than a party’s conclusory assertions. The court noted that the mere fact that paternity has been established does not automatically entitle the father to insist the child be given his surname, a notion which “harkens back to outdated societal concepts of legitimacy, morality, and inheritance.” Girten, 698 So. 2d at 888. Instead, the standard applied was the best interest of the child standard. The court went on to note that to embrace the father’s position that a name change was required based on “custom” would be misguided, quoting from the Ohio Supreme Court in Bobo v. Jewell, 38 Ohio St. 3d 330, 528 N.E.2d 180 (1988), at page 185: “In these times of parental equality, arguing that the child of unmarried parents should bear the paternal surname based on custom is another way of arguing that it is permissible to discriminate because the discrimination has endured for many years.”
Similarly, in the case of Durham v. McNair, 659 So. 2d 1291 (Fla. 5th DCA 1995), the Fifth District Court of Appeal once again overruled a trial judge who had ordered that a child’s name be changed solely on the basis of paternity. The Fifth District noted that although pursuant to F.S. §382.013 the trial court is authorized in a paternity proceeding to specify a surname for the child, the mere fact that one happens to be the father of the child does not automatically entitle him to insist the child be given his surname. Any change must be based on the trial court’s determination that renaming is in the child’s best interest.
In Bardin v. State of Florida, Department of Revenue, 720 So. 2d 609 (Fla. 1st DCA 1998), an appellate court once again confronted (and reversed) a trial court’s order which changed the child’s legal surname to the father in spite of the fact that the father offered no evidence that the change was in the best interest of the child.
These cases consistently hold that the best interest of the child standard is the controlling standard in cases seeking name changes. The issue then arises as to how that standard is to be applied in specific factual settings.
Determining What Is in Best Interest of Child
In Collinsworth, the court noted that to apply the best interest standard in ruling on a proposed name change, a court should give effort to the same factors as in custody cases.
No case appears to have set forth the specific factors which are to be looked at in a name change case, but an analysis of those appellate cases which have reviewed trial court rulings on proposed name changes provides insight into what proof may or may not be sufficient. As noted above, neither the mere fact of paternity, the father’s desire, nor custom is sufficient proof to support a court order changing a child’s name.
In Levine v. Best, 595 So. 2d 278 (Fla. 3d DCA 1992), the appellate court found that the trial court did not abuse its discretion in refusing to change the child’s surname where everyone, especially his doctors, knew him by his current surname. In Girten, the father’s desire and his concern that the mother’s surname would allow the mother greater influence over the child fell “far short of the required showing of the best interest of the child standard.” Girten, 698 So. 2d at 888.
In Azzara v. Waller, 495 So. 2d 277 (Fla. 2d DCA 1986), the court affirmed the trial court’s decision denying a petition seeking a name change when the record contained conflicting testimony from expert psychologists as to what would be in the best interest of the child. In that case, one psychologist opined that a change in name would be in the child’s best interest because all children should have the same last name as the family they live with, believing that children with a different name feel guilty or feel that something is wrong with them. The other psychologist opined that such a name change would not be in the child’s best interest, since such a change would cause estrangement from her natural father and eliminate her current freedom to use two different names in two different households.
The one reported decision which did not affirm a court’s refusal to change a surname is enlightening. In Daniel v. Moats, 718 So. 2d 949 (Fla. 5th DCA 1998), the court addressed a situation in which a child carried the mother’s maiden surname even though the mother was now married. As a result, the child’s surname was different from both of the parents. The trial court had refused to change the child’s surname without explaining why this conclusion was in the child’s best interest. Accordingly, the court remanded the case to the trial court with instructions to enter a new order, explaining why a name change was or was not in the child’s best interest.
This case imposes upon the trial court a requirement to provide the reasons in its order for granting or denying a name change, and reflects that in the specific factual situation where the child no longer carries the name of either of its parents, the appellate court is reluctant to allow the name to remain unchanged without clearly articulated reasons and support thereof (contrary to the majority of the appellate decisions which overturn the trial court for changing the name).
Given the lack of a list of specific factors to consider in deciding whether a name change is in a child’s best interest, the question arises as to how one properly presents a case to the trial court either in support of or in opposition to a name change.
Since the best interest of the child standard is to be applied, the input and recommendations of psychologists and guardians ad litem (whose testimony is used routinely and accorded great weight by the trial courts in making custody decisions involving the best interest standard) should similarly be utilized with regard to name issues.
Factors which may go into the analysis by such professionals, and by the court, include matters such as the following:
1) What is the age of the child and to what extent has his or her identity been established with a given name? Generally, the younger the child, the less his identity has been established and, accordingly, the less traumatic a change of name may be. A name change which is implemented prior to the start of school may be less traumatic than after school has started, when the child’s name is better established with others. (However, a caveat with regard to this factor is in order. The court should not allow a party to take advantage of this factor by causing delays in the determination of the name issue and then arguing that the child is too old for the name change to be allowed).
2) The general acceptability of hyphenated names in the particular factual situation involved. Although the statute provides for the use of hyphenated names (in alphabetical order) when the parties cannot agree and the court does not otherwise order, expert opinions can be provided as to the appropriateness of a hyphenated name (and whether an order other than alphabetical is more appropriate to protect the best interest of the child). The child’s background and heritage also may be relevant since, in certain cultures, hyphenated names are less common and the use of a hyphenated name may not be in the child’s best interest, whereas they may be more common in other cultures and, therefore, may be in the child’s best interest.
The birth registration statute which sets forth the statutory parameters for establishment of a child’s name is only applicable to the establishment of the name for birth certificate purposes. Accordingly, when a change of name is sought in a modification proceeding, the statutory scheme is inapplicable and the court must make its determination based solely on the best interest of the child standard established in common law. As in all modification proceedings, modification proceedings to change a child’s name can only occur upon a showing of a significant change of circumstances. The case law fails to provide guidance as to what constitutes a significant change of circumstances, with the exception of the Daniel v. Moats case, which at least infers that the remarriage of the mother and the change of her maiden name may constitute such a substantial change of circumstances.
Attempts to have the name of a child established or changed in connection with a paternity action or a modification proceeding should be undertaken with the same diligence, examination of relevant statutory factors, and presentation of testimony as other contested family law matters. Any attempt to rely upon custom or some presumption that the father’s name should automatically be included in the child’s name must be avoided, since even if a sympathetic trial judge can be convinced that such evidence is sufficient, the court of appeal is likely to reverse if the decision is based on such an insufficient record.
1 William Shakespeare, Romeo and Juliet. A larger portion of Juliet’s monologue is cited by the court in a case involving a name dispute in a paternity action in Azzara v. Waller, 495 So. 2d 277 (Fla. 2d D.C.A. 1986), with the court noting that although for Juliet, surnames may be unimportant or even sometimes a nuisance, for adults surnames are an important part of identity.
William D. Palmer practices with the law firm of Palmer & Palmer, P.A., in Orlando. He handles both civil matters and family matters, with a concentration in his family law practice on appeals, adoption litigation, and guardian ad litem matters. Mr. Palmer graduated with honors in 1976 from Boston College Law School.
This column is submitted on behalf of the Family Law Section, Ky M. Koch, chair, and Sharon O. Taylor, editor.