Name Change NOT in the Child’s Best Interest

January 29, 2019 § 1 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.

Naming Names

April 15, 2015 § 8 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.”

NAMING NAMES

January 29, 2013 § 1 Comment

The COA’s decision in Powell v. Crawley, handed down January 22, 2013, presents an opportunity to remind you of several aspects of name changes about which you need to be aware.

Christina Crawley gave birth to a baby daughter on January 29, 2010. The following day, Chase Powell, who was not married to Christina, signed two forms provided by the Mississippi Department of  Health. The first form was an acknowledgment of paternity. The second was a “Name of Child Verification Form,” which included the following language:

By my signature[,] I verify and agree that the [c]hild’s name as it appears in Item 1 of the birth certificate and Item 1 of [the verification form] is the name to be given to the child by the mother and I, and the name is spelled in accordance with our wishes.

The verification form also included the following statement:

The name given a child on the Certification of Live Birth establishes the legal identity of that child, and as such attention to the spelling of the name must be exercised. Traditionally, the [c]hild’s last name is the same as the [f]ather’s last name as listed on the Certificate of Live Birth, or, in cases where the mother is not married at any time from conception through birth and there is no “Acknowledgment of Paternity,” the [c]hild’s name is the legal last name of the mother at the time of birth. However, parents are not required to follow tradition and may name the child any name of their choosing.

Chase verified the child’s name as Carsyn Michelle Crawley.

Nine months later, Chase filed a complaint in chancery court seeking an adjudication of paternity, child support, and visitation. He also asked to change Carsyn’s surname to Powell. At hearing, the matter was presented solely by argument of counsel, who offered the forms described above for the court’s inspection.

The chancellor ruled that Chase had waived his right to have the child’s surname changed when he signed the verification form.

The COA affirmed the chancellor’s decision, but not for the reason assigned by the trial judge. Judge Irving, writing for the majority, said:

“We need not decide whether the chancery court abused it[s] discretion in refusing to grant the requested relief because, as stated, Powell failed to make the State Board of Health a respondent. Therefore, the chancery court could not have granted the relief even if it had wanted to. See Tillman v. Tillman, 791 So. 2d 285, 289 (¶13) (Miss. Ct. App. 2001) (stating that it is the standard practice to affirm the trial court’s decision when the right result has been reached even if for the wrong reason).”

So here are a few nuggets to take away from this decision:

  • If you are seeking to change a person’s name only, then you proceed under MCA 93-17-1(1), which would obviously require in a case such as Chad Powell’s that the mother and father would be parties.
  • Another frequent cause of name changes is post-divorce, when the name change was not included in the divorce judgment and the petitioner wants a court order to get Social Security, driver’s license, retirement and other records straight. That kind of name change is also governed by MCA 93-17-1(1). It would be an ex parte action, since there is no other interested party.
  • If you wish to change the name 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, you can expect a result strikingly similar to Chad Powell’s.
  • MCA 93-17-1(2) allows the court to “legitimize” a child when the natural father marries the natural mother. Since that relief would include adding the father to the birth certificate, you should comply with MCA 43-57-23 and make the State Registrar of Vital Records a party.
  • There is a dearth of case law as to how the statutes authorizing establishment of paternity via acknowledgment interact with the statutes for parentage (paternity), child support, custody and visitation. If I were in practice, I think I would have advised Chase to file the parentage action as he did so as to open up all of the other relief incidental to being the father. Acknowledgment of paternity is only that; it does not confer visitation or custodial rights, does not set child support, and may even be set aside in certain conditions.
  • This decision sidestepped the question of the chancellor’s authority and scope of discretion in changing the child’s name. Since it is not res judicata as to the State Bureau of Vital Statistics, I would guess that Chase could file his suit again, this time making the agency a party. Maybe then we’ll get an answer.

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