Changing the last name of a child—what is in their best interest?

In a case that was recently decided by the Circuit Court of Ogle County and then overturned by the Second District Appellate Court of Illinois, the father of a child sought to have the child’s last name changed to his (the parents were not married).  At the time of birth the mother gave the child her last name because the father was sporadically present during her pregnancy and she was not sure what his role in the child’s life would be; she wanted to child to have her last name as she knew that she was prepared to raise the child and be present throughout his life.

At the time the case was decided there were two statues under which an unmarried parent could petition to change the child’s name: 14 (e) of the Parentage Act, which required a court to order a change in a child’s name when both parents agreed on such and a change 750 ILCS 45/14(e) (West 2014) (“On request of the mother and the father, the court shall order a change in the child’s name.”)  This statute was not applicable in the current case as the mother did not agree for the name change. The other statute permitting a name change is section 21-101 of the Code of Civil Procedure (735 ILCS 5/21-101 (West 2014).  This is the statutory provision that was correctly cited by the father. Part of the statute states, “Because a change in the name of a child is a serious matter with far-reaching effects, section 21-101 permits such a  change ‘only if the court finds by clear and convincing evidence that the change is necessary to serve the best interest of the child.” “In determining whether a name change is necessary to serve the best interest of a child, a court ‘shall consider all relevant factors,’ including the wishes of the child’s parents and any other person with physical custody of the child; the child’s own wishes; the interaction between the child and any siblings, step-parents or step-siblings; and the impact of a name change on the child’s relationships within the child’s home, school, and community.” In re Tate Oliver B. a Minor 14-F-85 “A trial court’s decision on a name-change request will be affirmed unless it is against the manifest weight of the evidence. Stockton v. Oldenburg, 305 Ill. App. 3d 897, 899 (1999).

The Appellate Court determined that the Circuit Court did not correctly apply this standard as the only reason the father gave for the name change was his opinion, “there was no reason for my name not to be up there.” In re Tate Oliver B. a Minor 14-F-85  The Appellate Court determined that the father’s evidence was insufficient to meet the statutory standard of clear and convincing evidence demonstrating that a name change is necessary to serve the child’s best interests.

Many people may think that a child will automatically take their father’s last name, either at birth or when paternity has been established but as this case shows, that is not always the case. As the statute states and the the Appellate Court applied, changing a child’s name, comes with a very high burden and it should not automatically be assumed that a father has a right for the child to have his last name.

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