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Divorcing parents and a child’s last name

Dear Clients and Friends,

Couples who are separating sometimes fight over what their children’s last name should be. As a general rule, the answer is whatever is in the children’s best interests. But deciding what those interests are isn’t always easy.

For instance, when New Jersey dad Paul Emma looked through his children’s school records, he was surprised to discover that his ex-wife, Jessica Evans – who had primary custody – had changed their last name from “Emma” to “Evans-Emma.”

He took the case to court, trying to undo the name change. Evans retaliated by asking a judge to change the children’s last name again, this time to simply “Evans.”

The judge ruled that since Jessica had primary custody, it should be assumed that whatever name she chose was in the children’s best interests.

But Emma appealed, and the New Jersey Supreme Court said, in effect, “not so fast.”

The Supreme Court said that it shouldn’t just be assumed that a parent with custody can change the children’s names. Rather, if Jessica wants a name change, she will have to prove that a new name is actually better for the children.

In deciding whether a new name is a good idea, a judge will have to consider how long the children had their previous last name, how strongly the children identify with the mother’s and father’s families, the emotional impact of having a last name that’s different from that of the custodial parent, and the children’s own preference.

Meanwhile, a Virginia case involved a girl who was born out of wedlock. The girl’s first name was Addison, and she was given her mother’s last name, “White.” The couple then split up and the mother married someone else, at which time she took her husband’s last name, “Wirick.” This meant that the girl no longer shared a last name with either parent.

The father, Stacy McMahon, went to court to try to change the child’s last name to his own, but the mother objected.

Stacy argued that the fact that Addison had a different last name from him caused a lot of confusion. For instance, it made it difficult for him to communicate with Addison’s preschool and with her health insurance company. He also said he was embarrassed because he was frequently referred to as “Mr. White” at his daughter’s school.

But the Virginia Supreme Court sided with the mother. It said the issue is what is in the best interests of the child – and while Stacy had demonstrated that having a different last name from his daughter had caused inconvenience and embarrassment to him, he hadn’t shown that it had caused any problems for Addison.

If you have further family law questions for yourself or another please call us for a free initial phone evaluation to see if we can be of help.



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