Naming Names

April 15, 2015 § 7 Comments

Requests for name changes are something every family practitioner encounters.

There are two general categories: (1) the change of name only; and (2) correction or change of birth certificate.

If you are seeking to change a person’s name only, without affecting the birth certificate, you proceed under MCA 93-17-1(1). Most often, this type name change is in the context or wake of a divorce action, where the woman wants her surname restored to her former name. That is an ex parte matter, since there is no other interested party. Except, however, in the context of the divorce, in which the estranged spouse may object. I represented a woman in an ID divorce once, and her husband adamantly and quixotically refused to agree to any provision in the PSA allowing her to change her name. I advised her to agree, and threw in a separate name-change action after the divorce was final.

Divorces are not the only reason for a name change. Some people simply don’t like their given name, or want to honor someone. I signed a judgment not long ago for a young man who wanted to change his surname to that of his step-father, who had raised him and was the only father he had ever known. If you are changing the name of a child, both parents must join.

In neither of the above scenarios does the birth certificate change. In order to change the birth certificate, more is required.

If you wish to change any birth fact on the birth certificate, then you proceed under MCA 41-57-23, which requires that you make the State Registrar of Vital Records a party. Typically, lawyers simply mail a copy of the complaint to the State Board of Health with a request for a response, and the agency will file an answer, most often either admitting the relief sought or leaving it up to the court. If you fail to make the agency a party, the judge will send you back to the drawing board.

Keep in mind that changing birth facts requires some proof, more than mere assertions. If you are trying to correct an incorrect name on the birth certificate, produce driver’s license, Social Security card, school records, and affidavits showing the correct information. If you are trying to correct a birth date, baptismal records, affidavits, school records, and the like will support your claim.

Another kind of birth certificate change is set out in MCA 93-17-1(2), which allows the court to “legitimize” a child when the natural father marries the natural mother. Again, you must make the State Registrar of Vital Records a party.

Name changes are fairly simple. Just keep in mind that if it’s for an adult, it’s ex parte. If it’s for a child, the parents must be joined. If it effects a change in a birth certificate, the state must be made a party. It’s embarrassing and costly to drive two counties over only to have a judge say, “Sorry, you have to make the parents or the State Department of Health a party.”

Tagged:

§ 7 Responses to Naming Names

  • Robin White says:

    The most interesting name change I have ever witnessed was after the Saints won the Super Bowl in 2010. One day while waiting to be heard in a case, I sat through a name change in which the Chancellor changed a little boy’s middle name to Brees. His first name was already Drew, making his new name Drew Brees _____. His mother had promised him before the season started that “if the Saints win the Super Bowl,” he could change his name to Drew Brees. She made good on her promise!

  • Lou Walker says:

    I practice in DeSoto County, and one of the issues I have seen is a Mississippi resident trying to change a Tennessee birth certificate. courts in TN will not hear the action because they parents are not TN residents. That leaves them in the position to ask a MS court to order the TN BVS to change a birth certificate. The TN BVS does not require any notice (I have called them and asked where to send notice and they told me not to. I also am licensed in TN. I have not had a problem thus far with TN recognizing the order to change the name from the MS court and changing the name on the birth certificate, but it is with a line through the old name and the corrected name noted above.
    I am concerned about one that I have recently been asked to do. TN law provides that BVS will change the name based on a court order and they recognize the out of state order that changed the name, but the BVS requires that a court order must specifically order them to block and delete if the name should be completely removed. I now have a couple who what that done, and I am concerned that the MS court will refuse to order the TN BVS to take any action. It is one thing to declare a name changed. It is entirely another to order an agency of another state to make specific changes to a birth certificate. I will try to remember to update this when I see how that works out!

    • Lou Walker says:

      Wow! I need an editor to check my grammar before I hit the enter key! Sorry for the mistakes.

    • Larry says:

      I have signed orders for other states — Alabama and Louisiana for sure (maybe more that I do not recall) to change BC’s. In each case the lawyers told me that they had contacted the agency in the other state and were advised to get Mississippi court order. I was dubious at first, but the lawyers tell me that it worked.

  • Ben Conner says:

    Rule 81(d)(1) says “The following actions and matters shall be triable 30 days after completion of service of process…., to-wit: ….correction of birth certificate; alteration of name….” 81(d)(3) then says, “Complaints and petitions filed in the actions and matters enumerated…shall not be taken as confessed.”

    I’ve had to name-change three elderly ladies. In each case, the Department of Public Safety had refused to renew a drivers license because the name on the DL was not identical to the name on the Social Security Card. State statute requires that their first name from their birth certificate must appear as their first name on their drivers license. Each of these ladies had been called by their middle name all their lives. Each had Social Security records using [middle name][initial][recent married name]. Department of Public Safety now insists that all identification cards reflect the same name. I think it has something to do with the Patriot Act and its progeny. DPS won’t let them adopt a different “first name”. Each lady had used multiple variations and iterations of initials, names, and multiple surnames through the years. The problem presenting to the attorney practitioner is that these ladies could not renew their drivers licenses because their names were different as between social security card and drivers license.

    They do not need to correct a birth certificate because there is no error in the record of their birth. Discrepancies arose much later. They could change their social security card name, but then all of their employment, and credit history, private retirement benefit, tax records, and property ownership records would be inconsistent with their id cards.

    The solution is a name change. Not correction of birth certificate.

    So far, I’ve had good success by reciting all of the different iterations of name used by Complainant in her lifetime. Upon presentation of proof, I ask my chancellor to make a finding that each of these names is one and the same person as the Complainant. So far, a certified copy of this Judgment has satisfied DPS, Social Security, U.S. Customs (Passports), and private investment holders. Complainant picks one of her names and is told to stick to that one.

    Procedurally, there are two obstacles. First, 81d matters cannot be confessed. There must be a record. Second, 81d matters are not triable until 30 days after somebody is served with process. If Complainant names the Bureau of Vital Statistics as a party defendant, the special assistant AG assigned to BVS will answer and refuse to amend, correct, or alter the birth certificate and offer to make a “marginal notation” of the name change on their records. This procedure satisfies Rule 81 and provides a trackable history of identity changes in conformity with DPS, BVS, and the Patriot Act.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

What’s this?

You are currently reading Naming Names at The Better Chancery Practice Blog.

meta

%d bloggers like this: