Last names are important. They ground us in family history and connect us to lineages and traditions that stretch back generations. When you married and had a child, it gave you some assurance that your family line would continue – that your family name would make it into at least one more generation. The fact that your marriage has not worked out jeopardizes that. Your ex has changed your child’s last name without your consent. No matter the current state of your marriage, no matter whether you are separated or in the process of divorce, your wife simply does not have the right to do this.
Divorces can get ugly. They involve a great deal of intense emotion and vitriol. But your personal feelings toward one another should not unduly affect your children – nor should you have any of your rights as a father violated because your ex wants to hurt you. If your wife has changed your child’s last name without your consent, you should take legal action against her.
You must first hire a lawyer. Before you make any move against what she has done, you will need a legal strategy (or at least the beginnings of one). A lawyer will ensure that what your wife has done is, in fact, illegal. Telling them the facts of the case will help them determine the legal grounds for your objection. As part of the initial consultation, your lawyer will go through the circumstances in which it is legal for a parent to change a child’s last name. Here are a few of them:
If your child has reached the age of 16, the law allows the name change. This might prove a hollow victory for your ex, as the child can simply change it back to your family name when they turn 18 and are entitled by law to change their own name.
Under certain circumstances, the law allows the custodial parent to change the child’s last name if the non-custodial parent has been sent to prison. This usually happens when the latter is sentenced to life without the possibility of parole or has received the death penalty. In other words, if there is no reasonable way a parent can establish a durable relationship with the child, then the custodial parent can change their last name.
A charge of abandonment can be used as a tactic to obtain a name change. Your ex may try to show the court that you have abandoned your child and have no legal rights to them. Even if you enjoy a close and loving relationship with your child, it may not stop your ex from trying to prove that you don’t.
If none of the above circumstances pertain, then your wife has acted illegally and you should take her to court. However, you may feel reticent to pursue the matter further. You do not want to go through another long, drawn out, and expensive legal proceeding with your ex. This is a legitimate concern. If you are already under financial strain, the family law lawyer you retain may be able to develop a payment scheme that works for you. In some cases, your lawyer may even get the judge to order that all or part of your legal fees be paid by your ex. This is possible if her actions were blatantly and outrageously in violation of the law.
You should also put aside fears that you will lose the case, and in a sense, lose your child. The lawyer you hire has the experience and expertise needed to get you justice.
Here are some of the steps that your lawyer will take to reverse what your wife has done:
You must establish your legal standing as the child’s father. If you were married to the child’s mother when they were born, the law presumes you are the father. If the two of you were not married and you put your name on the birth certificate, it stands as adequate proof of your paternity. If you were not married and did not put your name on the birth certificate, you can have a paternity test done. If the mother objects to the test, you can petition the court to order one.
Your ex must get the court’s permission before she changes the child’s name. If you are the child’s father, she must officially notify you that she is doing this. She is not allowed to do it behind your back. She is required to serve you with a copy of the petition or the motion she has filed in court. If you have received no such papers, your lawyer will point this out to the court. In some instances, this is enough for a judge to rule the name change invalid.
You have a right to object the name change. Most states require you to send a written objection to the court detailing your reasons for not wanting your child’s last name to be changed. Once the court receives your objection, it will stop the name change from going through until a hearing can be held.
Your lawyer will work quickly to get the reasons for your objection to the judge. If the judge does not receive your objections in a timely manner, they may decide that you don’t care enough about the matter and sign off on your wife’s request.
The burden of proof is on the mother. She will need to show the judge how the child will benefit from the new name. If you have always been active and involved in your child’s life, if you have supported them financially and developed a close bond with them, it will be hard for your wife to prove her case. Indeed, your lawyer will spend a great deal of time during the hearing showing how much of a father you have been to your child. Doing so will damage her case against you.
The bottom line is that you do not have to accept the change of your child’s name as a fait accompli. You can fight it. If you have been a good, decent, responsible, and active father, then your wife will have little or no ground to stand on. Hiring a lawyer will give you the means to stop your wife from trying to rob your child of their lawfully given last name. You should put up as much resistance and fight as you can to stop her from doing such harm.