Navigating the legal maze of changing your child’s surname post-separation or divorce can be complex. Attwood Marshall Lawyers Family Law Associate Laura Dolan breaks down the process and legal considerations.
When parties separate or divorce and there is a child from the relationship, it is common for the child to have the father’s last name.
However, circumstances may change over time, and the child may not have a relationship with the other parent or there could be other family issues at play – prompting the custodial parent, usually the mother, to consider changing the child’s last name to their maiden name.
For the mother of a child whose father is not listed on the birth certificate or is deceased, the process of changing your child’s last name to match the mother’s surname is relatively straightforward.
However, if the other parent is listed on the birth certificate or has shared parental responsibility, you will need their permission to change the child’s last name. If they don’t consent, one option may be to pursue legal action, whether by seeking a sole parental responsibility order or a court order.
When going down the contentious route, the parties must first attempt to resolve the issue through constructive discussion, family dispute resolution mechanisms, or mediation. Only when those talks fail can a parent apply to the court for a name change order.
The court will consider various factors, including:
- The amount of time the child spends with each parent,
- The impact of the name change on the child’s relationship with both parents,
- The potential for confusion,
- The child’s views, depending on their age and maturity,
- Short-term and long-term effects of the name change,
- Advantages of retaining the current name,
- The child’s welfare and any previous name changes,
- Cultural reasons and other relevant factors.
Here, we’ll explore the legal considerations for changing your child’s name, using hypothetical scenarios to highlight the complexities involved.
Scenario 1: Mother is the sole parent listed on the birth certificate
Jane is the mother of six-year-old Matthew. Matthew’s father died when he was three years old, and Jane is the sole parent listed on his birth certificate. With Matthew starting school, Jane decides he should share her last name.
The process is straightforward since Jane is the only parent listed on the birth certificate and has sole parental responsibility. She can apply in the state or territory where Matthew was born. There should be no complications.
Takeaway: If you are the only parent listed on the birth certificate (whether by choice or because the other parent has passed away), you have sole parental responsibility under the Family Law Act. Therefore, you can make this decision on behalf of the child. In the event the other biological parent is alive but not on the birth certificate, you can similarly decide to change your child’s name without needing their permission.
If the child is born in Australia or is an Australian citizen, the sole parent can apply to change the child’s name with the Births, Deaths and Marriages registry in the state or territory where the child was born. If the child was born overseas, they should lodge the application where the child currently resides, provided they have lived there for at least 12 months.
Scenario 2: Both parents are listed on the birth certificate, and one parent denies consent
Nicole and James divorced four years ago and have an eight-year-old daughter, Stephanie. Both parents are listed on Stephanie’s birth certificate and have shared parental responsibility.
Nicole wants to change Stephanie’s surname to her maiden name, arguing that it will help Stephanie feel more connected to her maternal family. James, however, strongly opposes the change, fearing it will distance him from his daughter.
Unable to reach an agreement, Nicole and James attend mediation. Despite trying to resolve the issue early, they still cannot agree. Nicole then applies for a court order. The court considers factors such as how much time Stephanie spends with each parent, whether she will be confused by the name change, and what is in her best interests. Ultimately, the court rules against the name change, finding that it is in Stephanie’s best interest to keep her father’s name and maintain their strong bond and shared custody arrangement.
Takeaway: If the other parent is listed on the birth certificate or has shared parental responsibility, you will generally need their permission to change the child’s last name. You can pursue legal action; however, complexities are involved, and the court will always emphasise the child’s best interests and existing relationships.
It’s important to know that recent changes in the law have eliminated the presumption of equal shared parental responsibility, making it crucial to speak to an experienced Family Lawyer to understand the specifics of your situation.
Scenario 3: Denial of name change and sole parental responsibility
Rebecca has had a difficult separation from Steven, the father of her ten-year-old son Max. Steven has had limited contact with Max, so Rebecca wants to change his name to her maiden name, signifying a fresh start and distance from Steven’s negative influence.
When Steven opposes the change, Rebecca applies for a sole parental responsibility order. The court reviews evidence of Steven’s past neglect and the limited nature of his contact with Max. After considering Max’s welfare and relationship with both parents, the court grants the order, allowing Rebecca to change Max’s last name.
Takeaway: A sole parental responsibility order grants you the authority to make decisions for minor children, even if the other parent is on the birth certificate. It can, however, be challenging to obtain one. The court will consider the child’s best interests and the need to protect them from harm. Speaking to an experienced Family Lawyer is always best when contemplating this option.
Scenario 4: Successful mediation
Marnie and Trevor share parental responsibility for their ten-year-old daughter, Zoey. They had an amicable separation, and Zoey lives primarily with her mother, spending most weekends with her father.
Marnie wants to hyphenate Zoey’s last name to include her maiden name and Trevor’s surname. Trevor has some hesitations about potentially complicating Zoey’s identity, but the pair agree to enter mediation, where they air their concerns openly and eventually agree to a hyphenated last name. The name change processes smoothly.
Takeaway: Mediation can be successful when both parents are open to compromise. Preparing for mediation is also essential to increasing your chances of a favourable outcome.
Make sure that you:
- Understand the process,
- Choose a mediator experienced in family law and child-related disputes,
- Gather the proper documents (i.e. medical or school reports, communication records, any existing court orders and anything else that could be useful in making decisions about the child’s arrangements),
- Focus on how the name change will benefit the child’s welfare and well-being, and
- Be flexible and open to alternative solutions.
Scenario 5: When the child is over the age of 12
Caitlyn and Dane divorced five years ago and have shared custody of their 13-year-old son, Olly. Caitlyn wants to change Olly’s last name to her maiden name because she believes it will help him as he enters high school. In mediation, Olly says he wants to keep his father’s last name. The mediator helps the parties facilitate a constructive conversation, and Caitlyn and Dane agree not to change his name, honouring Olly’s wishes.
Takeaway: Consent is typically required for children over 12 to change their last name. This requirement ensures that the child’s best interests are protected and that they are involved in decisions that significantly affect their identity.
Attwood Marshall Lawyers – experts in family law
Changing a child’s surname after separation or divorce can be complex, influenced by various legal and personal factors. Each situation is unique, and navigating the legal requirements can be challenging.
Attwood Marshall Lawyers has a dedicated team of family lawyers who practice exclusively in this complex and highly emotional area of law. Our team is experienced in handling parenting matters, helping people navigate separation and divorce, negotiating property settlements and financial agreements, and supporting people facing domestic and family violence.
If you need assistance with a family law matter, please don’t hesitate to contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au, or free call 1800 621 071.
