Saturday, 18 August 2007

Change of name: US case when mother had affair

One of the difficult issues that the Family Court and the Federal Magistrates Courts are asked to deal with are tussles about the names of children when the surnames of mums and dads are different.

There have been a series of cases which set out factors that are taken into account, such as the child's ongoing relationship to the father and what impact the change of name away from the father's surname will have on the child's self-identity.

A US court has recently dealt with the unusual situation of a mother, who remained married, but had a child by the man with whom she had an affair.

Family Law Prof Blog summarises the case:

The Supreme Court of South Dakota in a 3-2 ruling has held that a girl conceived when her mother had an affair must keep the last name of her mother's husband, overruling the trial court order that had changed the child's name to that of her biological father. The child's mother reconciled with her husband before the child was born and her husband's name was on the child's birth certificate. The majority found that the daughter, now 3, should have the same last name as everyone else in the home in which she lives.

The Supreme Court majority said it is in the child's best interest to keep the same last name as that of her mother, stepfather and half-sister. "It makes no sense to change her name after two years to her natural father's name," Justice Richard Sabers wrote for the court majority. "From the standpoint of her best interest, her name should remain the same as her family unit because she socializes with them, will go to school with them and live with them the majority of the time. Why should she be unnecessarily required to explain why her surname is different from her family unit in all these circumstances?" The majority opinion said the circuit judge placed too much importance on the possibility that the girl's mother and stepfather might get divorced. Tiede also disregarded testimony that indicated the relationship was improving among the mother, biological father and stepfather, the justices said.

The two dissenting justices would have given deference to the trial judge. The trial judge had concluded that not allowing the name change might lead to estrangement with the biological father, who had visitation rights with the child for the past two years. "With the high divorce rate and increased numbers of blended families, it is not unusual for a child to have a different surname than the child's mother or half-siblings," Justice Judith Meierhenry wrote. Justice Steve Zinter also dissented, saying he believes the court majority mistakenly focused on only one factor whereas most name change cases focus on a variety of factors.

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