The Name Game
September 13, 2016 § 3 Comments
A contentious issue in many paternity cases is what the surname of the child will be. It is contentious between the parties, certainly, and often with the parents, grandparents, aunts, uncles, and siblings who sit in the cheering section. The law, though, is rather clear on what is to be done about the child’s name.
Jeremy Flynn and Madison Bland had a relationship that resulted in the birth of a daughter, Allyson. When she learned she was pregnant, Madison told Jeremy, who asked for a DNA test. Madison refused because she thought it could harm the baby.
Their contact continued sporadically through the pregnancy, including one occasion when Jeremy accompanied Madison to the Medicaid office to enroll her for prenatal care.
On November 6, 2006, Allyson was born. Jeremy did not participate, and he was not listed on the birth certificate. Madison and the baby lived with Madison’s parents. When Madison attempted to show the new baby to Jeremy, he ran from them, according to the testimony.
Jeremy had little involvement in Allyson’s life. He claimed it was because he did not even know he was the father until 2010. The evidence was conflicting. He filed a petition for filiation, and an agreed DNA test established that he was, in fact, the father. Madison’s parents, the Blands, filed an intervening petition for custody. Following a trial, the chancellor found that Jeremy had deserted Allyson, and awarded the Blands custody and refused to change Allyson’s surname to Flynn. Jeremy appealed.
In Flynn v. Bland, decided August 30, 2016, the COA affirmed the award of custody, but reversed and rendered the chancellor’s denial of the name change. Judge Ishee wrote for the court:
¶15. Finally, Jeremy takes issue with the chancery court’s decision not to change Allyson’s surname to Flynn. Jeremy cites Rice v. Merkich, 34 So. 3d 555 (Miss. 2010), in support of his argument. We find Rice on point. Rice involved a child born to an unwed mother who failed to inform the father of the child’s birth. Id. at 558 (¶2). Accordingly, the child’s father was not given an opportunity to sign a paternity form. Id. The Mississippi Supreme Court quoted Mississippi Code Annotated section 41-57-23(2) (Rev. 2009), which provides:
If a child is born to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in [Mississippi Code Annotated] [s]ection 93-9-9 [(Rev. 2004)]. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule. Rice, 34 So.3d at 558 (¶10).
¶16. Ultimately, the supreme court in Rice determined that because the mother failed to prove by a preponderance of the evidence that it was in the child’s best interest that the child’s surname not be that of the father, the child should bear the father’s surname. See id. at 559 (¶16). In doing so, the supreme court noted that, in addition to conforming with applicable statutes on the topic, the decision also adhered to the Rules Governing the Registration and Certification of Vital Events by the Mississippi State Department of Health. Id. at 558-59 (¶¶11-12).
¶17. Furthermore, “in the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.” Miss. Code Ann. § 93-9-9(1). As explained in Rice, “[a]lthough the statute does not delineate those circumstances where the ‘judgment specifies otherwise,’ it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child, if, and only if, this is a contested issue.” Rice, 34 So. 3d at 557 (¶8).
¶18. Here, the record is clear the Blands did not contest the change-of-name request and have failed to show by a preponderance of the evidence that it is not in the best interest of Allyson to bear her father’s surname. We reverse the chancery court’s decision on this issue, and render the change of Allyson’s surname from Bland to Flynn in accordance with section 93-9-9(1).
That’s a pretty nifty recap of the law on name change in paternity cases. It might be just what you need to guide your client — and the cheering section — in deciding whether to litigate this issue.