Name Change NOT in the Child’s Best Interest

January 29, 2019 § Leave a comment

As I have mentioned around here before, change of a child’s name in a paternity case can be, to put it mildly, a contentious issue. You can read a previous post on the topic at this link.

Authority for the court to change the child’s surname is at MCA § 93-9-9(1), which says that, “The surname of the child shall be that of the father, unless the judgment specifies otherwise.”

The key case interpreting the statute is Rice v. Merkich, 34 So.3d 555 (Miss. 2010)., which holds (at page 557) that the trial court should change the child’s surname to that of the father unless the mother proves by a preponderance of the evidence that it would not be in the child’s best interest to change the child’s name.

In a recent case, Olson v. Bennett, decided December 18, 2018, the COA reversed and rendered a chancellor’s decision to change the child’s name. Robert Bennett had filed a paternity action after his child was eight years old and had already started school. Bennett had attended the birthing of the child, but refused to be listed as father on the birth certificate, and insisted on a paternity test. Due to his refusal to be named on the birth certificate, the child took the mother’s name, Olson. Even after the DNA test confirmed his paternity, Bennett took no action to have his name added to the birth certificate, and he did not immediately begin paying child support. The child lived exclusively with the mother, Lana, and Bennett was mostly absent from the child’s life until he filed his court action.

After Bennett filed his paternity action, the parties settled all issues of custody and support, leaving the issue of name change for the court to adjudicate. The chancellor ordered that the child’s name be changed to Bennett, but stayed registration of the judgment with the Department of Vital Records until resolution of appeal. Lana did appeal.

Here is how Judge Wilson analyzed it for the 7-3 majority [the child is referred to by the fictitious name “Noah”]:

¶16. In this case, the chancellor cited Rice, but many of the chancellor’s statements were inconsistent with Rice’s best-interest/preponderance-of-the-evidence standard. As noted above, the chancellor began the hearing by suggesting that he could make an “exception” to the rule that a “child shall take the last name of the father” only if Lana proved that “the circumstances are such that it is just really a traumatic kind of thing that would make it just absolutely inappropriate for the child to carry the father’s name.” The chancellor further stated that he could make an exception if there was “something seriously wrong with the father”—for example, if the father had raped the mother or “was a pedophile and had been abusing the child.” The chancellor indicated that some other “drastic” set of facts might justify an exception, although he did not provide additional examples. At the conclusion of the hearing, the chancellor recognized that there were “certainly some reasons that [Lana] could point to and say it would be in [Noah’s] best interest to leave [his name] as it is.” But the chancellor then concluded: “I don’t think that [Lana’s reasons] meet the criteria that the Supreme Court has set for us to be able . . . to allow the name to be different from what the statute says. The statute says that the child shall carry the father’s name.” The chancellor then “reluctantly” ordered Noah’s surname to be changed to Bennett.

¶17. The chancellor’s statements imply a misreading of the majority opinion in Rice. Lana was not required to prove that there was “something seriously wrong” with Bennett or that it would be “absolutely inappropriate” for Noah to have Bennett’s surname. Nor was Lana required to prove that Noah would be traumatized by a name change. Under Rice, Lana only needed to show, by a mere preponderance of the evidence, that it would not be in nine-year-old Noah’s “best interest” to change his name. Rice, 34 So. 3d at 557 (¶¶8-9). We conclude that Lana met her burden and that the chancellor manifestly erred by ruling otherwise.

¶18. To begin with, the facts of this case are materially different from the facts of Rice. In Rice, Merkich took action when Presley was only weeks old so that she was barely one year old when her name was changed. As Justice Lamar put it, Presley was still “too young even to know her last name.” Id. at 563 (¶28) (Lamar, J., dissenting). In contrast, Bennett did not seek visitation with Noah or take any action to change his name until Noah was nearly eight years old. Thus, Noah was nine years old by the time of the hearing in the chancery court, [Fn 6] certainly old enough to have become accustomed to his name.

[Fn 6] Noah is now ten years old.

¶19. Moreover, Lana presented some evidence to support her contention that it was not in Noah’s best interest to change his surname. Lana and Sharon could not and did not testify that a name change would result in certain harm to Noah, but that is to be expected. In most cases, it will be difficult, if not impossible, for a mother to produce objective evidence that a name change will cause a specific, certain harm to her child. Nonetheless, Lana and Sharon provided legitimate reasons why it would not be in Noah’s “best interest” to change his name. Indeed, at the conclusion of the hearing, the chancery court recognized that “certainly” there were “some reasons that [Lana] could point to and say it would be in [Noah’s] best interest to leave [his name] as it is.” Given Noah’s age and history of behavioral issues at school, it was reasonable for Lana and Sharon to be concerned that a sudden name change could have a negative impact on him.

¶20. On the other side of the scale, Bennett presented no reason or evidence that it would be in Noah’s best interest to change his name at age nine. Bennett stated only, “I want him to carry . . . his family name . . . . My father passed my name down to me, and I want to pass it down to my children.” Bennett’s feelings are understandable, but he failed to act on them—or even pursue visitation with Noah—until Noah was nearly eight years old. More important, Bennett’s desire to pass on his family name is not the equivalent of Noah’s best interest. “[T]he child’s best interest” is not the same thing as “either parent’s best interest.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). Put simply, “[t]he relationship of parent and child is not for the benefit of the parent, but of the child.” Reno v. Reno, 253 Miss. 465, 475, 176 So. 2d 58, 62 (1965) (quoting J.W. Bunkley Jr. & W.E. Morse, Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).

¶21. In summary, Lana presented legitimate reasons that it was not in Noah’s best interest to change his name, while Bennett presented no reason that a name change would benefit Noah. Lana met her burden of proof under Rice, and the chancery court manifestly erred to the extent that it concluded otherwise. Accordingly, we reverse and render the judgment of the chancery court insofar as it ordered Noah’s surname to be changed. [Fn omitted] Noah’s last name shall remain Olson.

Westbrooks dissented, joined by Greenlee and Irving, taking the position that Lana had not met her burden of proof.

It would appear that Bennett’s lengthy delay in bringing an action cost him in this case.

Oh, and a cite to Bunkley and Morse is a nice touch. Some long-established principles are fresh even in quotations more than 60 years old.

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